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The Forgotten Right to Be Secure
Luke M. Milligan*
Surveillance methods in the United States operate under the general principle that “use
precedes regulation.” While the general principle of “use precedes regulation” is widely
understood, its societal costs have yet to be fully realized. In the period between “initial
use” and “regulation,” government actors can utilize harmful investigative techniques
with relative impunity. Assuming a given technique is ultimately subjected to
regulation, its preregulation uses are practically exempted from any such regulation due
to qualified immunity (for the actor) and the exclusionary rule’s good faith exception
(for any resulting evidence). This expectation of impunity invites strategic government
actors to make frequent and arbitrary uses of harmful investigative techniques during
preregulation periods. Regulatory delays tend to run long (often a decade or more) and
are attributable in no small part to the stalling methods of law enforcement (through
assertions of privilege, deceptive funding requests, and strategic sequencing of criminal
investigations). While the societal costs of regulatory delay are high, rising, and difficult
to control, the conventional efforts to shorten regulatory delays (through expedited
legislation and broader rules of Article III standing) have proved ineffective.
This Article introduces an alternative method to control the costs of regulatory delay:
locating rights to be “protected” and “free from fear” in the “to be secure” text of the
Fourth Amendment. Courts and most commentators interpret the Fourth Amendment
to safeguard a mere right to be “spared” unreasonable searches and seizures. A study
of the “to be secure” text, however, suggests that the Amendment can be read more
broadly: to guarantee a right to be “protected” against unreasonable searches and
seizures, and possibly a right to be “free from fear” against such government action.
Support for these broad readings of “to be secure” is found in the original meaning of
“secure,” the Amendment’s structure, and founding-era discourse regarding searches
and seizures. The rights to be “protected” and “free from fear” can be adequately
safeguarded by a judicially-created rule against government “adoption” of an
investigative method that constitutes an unregulated and unreasonable search or
seizure. The upshot of this Fourth Amendment rule against “adoption” is earlier
standing to challenge the constitutionality of concealed investigative techniques. Earlier
access to courts invites earlier judicial regulation, which, in turn, helps curb the rising
costs of regulatory delay.
* Associate Professor of Law, University of Louisville School of Law.
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Table of Contents
Introduction................................................................................................ 714
I. The Problem of Regulatory Delay .................................................... 720
A. Regulatory Delay................................................................... 720
B. Delay by Concealment ........................................................... 722
C. Exploitation and Costs .......................................................... 727
D. Efforts to Expedite Regulatory Processes ....................... 728
II. The Right to Be Secure ....................................................................... 732
A. The Prevailing Right to Be “Spared” ................................. 732
B. Contending Interpretations of “to Be Secure” ................ 734
C. Analyzing the Broad Interpretation of “to Be
Secure” ...................................................................................... 738
1. Definitions and Usages of “Secure” ............................. 738
2. Structure of the Fourth Amendment ........................... 741
3. Discourse on Harms of Potentiality ............................. 746
III. Implications .......................................................................................... 750
A. Expedited Regulation ............................................................ 750
B. Rule Against Adoption ......................................................... 751
C. Curbing New Litigation ......................................................... 752
D. Preserving Ongoing Surveillance ....................................... 754
E. Respecting Precedent ............................................................. 755
Conclusion .................................................................................................. 759
Introduction
Surveillance methods in the United States operate under the general
principle that “use precedes regulation.”1 This principle comes as no
surprise to the lawyer or policymaker who has sought the regulation of a
new investigative technique. While the general principle of “use precedes
regulation” is widely understood, its implications have yet to be fully
realized. To date, few scholars have addressed the costs incurred by
society during “regulatory delays.”2 This Article seeks to fill this void.
1. Neil Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934, 1942 (2013) (“[T]he
general principle under which American law operates is that surveillance is legal unless forbidden.”).
2. The costs of regulatory delay are not adequately captured by conventional discussions of
“failure costs.” “Failure costs” are typically analyzed within a slice of time. If the technique at issue is
sufficiently regulated at the time of analysis then it will likely elude identification as a “failure cost.”
See Robert Nozick, Anarchy, State and Utopia 153–55 (1974) (discussing time-slice principles). This
Article’s discussion of “delay costs,” however, is historical. It identifies costs even when the technique
at issue is sufficiently regulated at the time of analysis. To illustrate the difference, assume that
Technique X is unregulated from 2002 to 2006, Technique Y from 2006 to 2010, and Technique Z from
2010 to the present. An analysis of “failure costs” would typically be limited to the harm caused by
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In the period between “initial use” and “regulation,” government
actors can utilize harmful investigative techniques with relative impunity.
Assuming that a given technique is ultimately subjected to regulation, its
preregulation uses are practically exempted from any such regulation due
to qualified immunity (for the actor) and the exclusionary rule’s good faith
exception (for any resulting evidence).3 This expectation of impunity
invites strategic government actors to make frequent and arbitrary uses of
harmful investigative techniques during preregulation periods.4
The societal costs of regulatory delay are a function of delay lengths.5
For example, a five-year delay in regulation invites more preregulation
uses than a one-year delay. In the United States, regulatory delays tend to
be long—often running a decade or more.6 Long delays are attributable in
Technique Z. An analysis of “delay costs,” on the other hand, would focus on the twelve years of harm
caused by Techniques X,Y, and Z.
3. See Davis v. United States, 131 S. Ct. 2419, 2431 (2011) (recognizing an exception to the
exclusionary rule for good faith reliance on a binding appellate decision); see also Wayne A. Logan,
Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment, 65 Vand. L. Rev. 1137,
1180–82 (2012) (discussing the possibility of extending the good faith exception to situations in which
there is no settled law within the circuit); Pearson v. Callahan, 55 U.S. 223 (2009) (stating rules on
qualified immunity).
4. For example, police in one Virginia municipality secretly used Global Positioning System
(“GPS”) devices to further investigations in nearly 160 cases from 2005 to 2007. See Alison M. Smith,
Cong. Research Serv., R41663, Law Enforcement Use of Global Positioning (GPS) Devices to
Monitor Motor Vehicles: Fourth Amendment Considerations 2 n.11 (2011); see also Eric
Lichtblau, Police Are Using Phone Tracking as a Routine Tool, N.Y. Times, Mar. 31, 2012, at A1. The
decision to regulate an investigative technique generally implies that preregulation uses of that
technique caused undue harm (although such harm is rarely found to constitute “legal harm”). See,
e.g., Williams v. United States, 401 U.S. 646, 656 (1971); Desist v. United States, 394 U.S. 244, 246
(1969). For example, consider the Supreme Court’s recent holding that the government’s warrantless
attachment of a GPS device to a vehicle, and its use to monitor the vehicle’s movements, constitutes an
unreasonable search. United States v. Jones, 132 S. Ct. 945, 949 (2012). The Court’s finding that the
technique at issue in Jones is an unreasonable search implied that the technique caused undue harm,
which, in turn, implied that earlier, preregulation uses of the technique caused undue harm. Id. at 952
(“By attaching the device to the Jeep, officers encroached on a protected area.”). There are admittedly
situations in which a regulated investigative technique might not have caused undue harm in its
preregulation period (due to the existence of special factors unique to the preregulation period). These
situations are rare enough that I will assume, for the purposes of this Article, that regulation of an
investigative technique implies that preregulation uses of that investigative technique caused undue harm.
5. I do not mean to suggest that regulatory delays provide no benefits. Delay can, of course,
afford regulators the necessary time to accurately assess the privacy and security implications of a
given technique. See generally City of Ontario v. Quon, 130 S. Ct. 2619 (2010). With that said, most
assessments of new investigative techniques do not benefit from regulatory delay. The typical
assessment will not present difficult questions. In the atypical assessment, where difficult issues arise,
the difficulties are rarely likely to be allayed with time. And in that narrow category of assessments in
which difficult questions are likely to be allayed with time, the costs associated with expedited
decisionmaking are mitigated by the fact that judges and legislators are able to amend their
conclusions at later points. Id. at 2629 (Scalia, J., concurring). As a result, the costs of regulatory delay
seem to outweigh the benefits.
6. See infra Part I.B. Regulation of investigative techniques by law enforcement can come in the
form of legislation, judicial decisions, or administrative actions. The period of preregulation runs from the
time a given technique is first used by law enforcement in the jurisdiction until the time the jurisdiction
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no small part to the stalling methods of law enforcement (through
assertions of privilege, deceptive funding requests, and strategic
sequencing of criminal investigations).7 The costs of regulatory delay are
also a function of technique depth. A deep pool of unregulated
investigative techniques permits law enforcement to stack regulatory
delays upon one another: when a preferred technique is exposed and
regulated, resourceful investigators can simply dip into their pool of
unregulated techniques to continue surveillance.8 The current pool of
unregulated techniques is deep, including satellite surveillance, facialscanning surveillance, radio-wave hacking, cyborg surveillance insects,
nano sensors, iris scanners, bomb-sniffing plants, “Smart Dust” motes,
and nano-based radio-frequency identification barcodes.9 Tomorrow’s
pool is anyone’s guess. The depth of available techniques, coupled with
the length of regulatory delays, leaves law enforcement under-deterred
in their use of harmful investigative methods.
While the societal costs of regulatory delay in the United States are
high (and likely rising), conventional proposals to control these costs have
enjoyed little success. Calls for more proactive legislative regulation of
investigative techniques have gone largely unheeded.10 And in 2013, the
Supreme Court flatly rejected an argument to loosen Article III standing
limits for the purpose of inviting earlier judicial review of investigative
techniques.11 It seems time to explore alternative reforms.12
This Article locates a solution to the problem of regulatory delay in
the text of the Constitution.13 The Fourth Amendment has traditionally
regulates law enforcement’s use of that technique. This can last for a decade or more. See Quon, 130 S.
Ct. at 2630–33 (leaving unregulated the technique of subpoenaing records providing content of text
messages sent on work-issued devices). For example, eight years after Police Chief Magazine described
the technique as a “particularly helpful tool,” the Supreme Court reviewed warrantless GPS tracking.
Jones, 132 S. Ct. at 949.
7. See infra Part I.B. This Article uses the term “law enforcement” as a proxy for “government
actors who use investigative techniques” in order to avoid the terminological confusion that comes from
distinguishing government actors who use the techniques from those who regulate the techniques.
8. See infra Part I.B. You could even imagine a contractor leasing surveillance tools during the
period of impunity with guarantees to substitute new devices once the older ones are regulated.
9. See infra Part I.B. Joby Warrick, Domestic Use of Spy Satellites to Widen, Wash. Post,
Aug. 16, 2007, at A1.
10. The flurry of congressional activity regarding NSA surveillance in the wake of the revelations
by Edward Snowden does not necessarily reflect a new legislative attitude toward the regulation of
general investigative techniques. For discussion of the unique nature of the recent legislative calls for
NSA reform, see discussion infra notes 104–106.
11. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150 (2013).
12. See Jack M. Balkin, The Constitution in the National Security State, 93 Minn. L. Rev. 1, 23–
24 (2008) (“Unless legislatures and courts can devise effective procedures for inspecting and
evaluating secret programs, the Presidency will be a law unto itself.”).
13. Every judge attributes at least some weight to the original meaning of the Constitution. See,
e.g., Dist. of Columbia v. Heller, 554 U.S. 570, 636 (2008) (Stevens, J., dissenting); Wilson v. Arkansas,
514 U.S. 927 (1995).
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been interpreted by courts to safeguard a mere right to not be subjected
to unreasonable searches or seizures.14 In other words, the Amendment is
read to guarantee nothing beyond the right to be “spared” an
unreasonable search or seizure.15 In 2013, the Supreme Court reaffirmed
the conventional “spared” reading of the Fourth Amendment in Clapper
v. Amnesty International.16 In Clapper, all nine Justices agreed that
communications surveillance programs do not violate an individual’s
Fourth Amendment rights before the government succeeds in
“intercepting” or “acquiring” that individual’s communications.17 The
Court made clear, once again, that the Fourth Amendment is not
violated by attempts or threats to conduct an unreasonable search or
seizure.18 Nor are an individual’s Fourth Amendment rights violated by
the existence of a vast surveillance program that happens to spare the
individual claimant.19
The Fourth Amendment can be read, however, to safeguard more
than a right to be “spared” an unreasonable search or seizure.20 The
Amendment provides for “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures.”21 Unlike its textual counterparts (such as “search,” “seizure,”
and “unreasonable”), the “to be secure” phraseology remains largely
forgotten: it is treated on mere occasion by commentators;22 and it has
14. See discussion infra note 118.
15. See discussion infra note 119.
16. Clapper, 133 S. Ct. at 1150.
17. Id. at 1147 (explaining that the Fourth Amendment is violated if communications are
“intercepted” or “acquired”); id. at 1155 (Breyer, J., dissenting) (stating that harm occurs only if the
government “intercept[s] at least some of their private, foreign, telephone, or e-mail conversations”);
see ACLU v. NSA, 493 F.3d 644, 688 (6th Cir. 2007) (Gibbons, J., concurring) (“The disposition of all
of the plaintiffs’ claims depends upon the single fact that the plaintiffs have failed to provide evidence
that they are personally subject to the [challenged program].”).
18. Clapper, 133 S. Ct. at 1152.
19. Id. at 1148–50.
20. This alternative reading of “secure” was recently referenced by the Presidential Advisory
Commission on the National Security Agency (“NSA”). President’s Review Grp. on Intelligence &
Commc’ns Techs., Liberty and Security in a Changing World: Report and Recommendations 45
(2013) [hereinafter Liberty and Security in a Changing World] (“In Latin, the word ‘securus’ offers
the core meanings, which include ‘free from care, quiet, easy,’ and also ‘tranquil; free from danger,
safe.’”).
21. U.S. Const. amend. IV (emphasis added). With the Court’s extensive emphases on the
original text in recent cases such as Dist. of Columbia v. Heller, 554 U.S. 570 (2008), and Nat’l Fed’n of
Bus. v. Sebelius, 132 S. Ct. 2566 (2012), it seems reasonable to press the Court on why it has ignored
the “to be secure” text.
22. See Lawrence Rosenthal, Seven Theses in Grudging Defense of the Exclusionary Rule,
10 Ohio St. J. Crim. L. 523, 538 (2013) (“The term ‘secure’ is often ignored in discussions of the Fourth
Amendment.”). The leading commentator on the constitutional meaning of “secure” is Thomas
Clancy. In a series of articles Clancy has claimed that the right “to be secure” promises nothing more
than a right to exclude the government from actual intrusions. See, e.g., Thomas K. Clancy, What
Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 Wake Forest L. Rev. 307
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been left undefined in the case law.23 Historical and textual analyses of
“to be secure,” however, suggest the existence of a Fourth Amendment
right to “protection” against unreasonable searches and seizures, and
perhaps a right to be “free from fear” against such government action.
Support for these interpretations of “to be secure” rest in the dictionary
definitions of “secure,”24 the structure of the Fourth Amendment,25 and
founding-era discourse concerning searches and seizures, which regularly
emphasized the harms attributable to the potentiality of unreasonable
searches and seizures.26
Judicial recognition of Fourth Amendment rights to be “protected”
and “free from fear” will almost certainly reduce the costs of regulatory
delay. The prevailing interpretation of the Fourth Amendment (limited
to a right to be “spared”), taken in conjunction with the rules on pleading
and Article III standing,27 leaves society with a regulatory matrix that can
be easily exploited by self-interested law enforcement actors. To initiate
judicial review, claimants must plead facts to demonstrate that a
challenged technique was actually used on them or that such use was
certainly impending.28 Law enforcement can delay judicial regulation of a
new investigative technique by simply concealing information about the
particular targets of its new technique. Concealment assures far less
delay, however, when the Fourth Amendment is interpreted to safeguard
(1998) [hereinafter Clancy, Property, Privacy, or Security]; Thomas K. Clancy, The Fourth
Amendment as a Collective Right, 43 Texas Tech L. Rev. 255 (2010) [hereinafter Clancy, Collective
Right]; Thomas K. Clancy, The Importance of James Otis, 82 Miss. L.J. 487 (2012) [hereinafter
Clancy, James Otis]. Several commentators have suggested that “to be secure” could be read more
broadly to include rights to be “protected” or “free from fear.” Unfortunately, none of the proponents
of the broad reading of “to be secure” has offered extensive historical and textual support for the
claim. Richard H. McAdams, Note, Tying Privacy in Knotts: Beeper Monitoring and Collective Fourth
Amendment Rights, 71 Va. L. Rev. 297, 318–19 (1985); Jed Rubenfeld, The End of Privacy, 61 Stan.
L. Rev. 101, 122 (2008). For analysis of the contending interpretations of “to be secure,” see infra
Part II.A.
23. See Rubenfeld, supra note 22, at 119 (observing that the “right to be secure” text “play[s]
little role in current doctrine”). Interestingly, the Presidential Commission on NSA surveillance
devoted several pages to the contending meanings of “secure.” See Liberty and Security in a
Changing World, supra note 20, at 43–46.
24. Oxford English Dictionary 851 (2d. ed., 1989) (defining “secure” as: “safe, free from
danger”; “protected from or not exposed to danger”; or “being free from fear or anxiety”); Samuel
Johnson, 1 A Dictionary of the English Language 1777 (1755) [hereinafter Johnson Dictionary]
(defining “secure” as: “free from danger, that is safe”; “to protect”; “to insure”; “free from fear”; or
“sure, not doubting”).
25. See discussion infra Part II.C.2.
26. See discussion infra Part II.C.3.
27. See generally Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013); Ashcroft v. Iqbal,
556 U.S. 662 (2009).
28. Clapper, 133 S. Ct. at 1149; Richards, supra note 1, at 1944 (“Plaintiffs can only challenge
secret government surveillance they can prove, but the government isn’t telling.”).
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rights to be “protected” or “free from fear.”29 Both rights are, in
important ways, broader than the right to be “spared”: the term
“protected” implies some degree of immunity, while “free from fear”
turns not on actualities but perceptions.30 Thus, an individual “spared” an
investigative technique can nonetheless suffer a violation of her rights to
be “protected” or “free from fear.”31 This is an important point. It means
that Fourth Amendment claimants can establish standing to challenge the
constitutionality of a new investigative technique even if law enforcement
has successfully concealed information about the objects of its
surveillance.32 Expedited standing invites earlier judicial regulation,
which, in turn, provides a substantial check on the rising costs of
regulatory delay.33
Judicial recognition of individual rights to be “protected” and “free
from fear” will have significant implications for current Fourth
Amendment rules and procedures. Thankfully, these rights can be
adequately guarded by a simple rule against government adoption of an
investigative method that constitutes an unregulated and unreasonable
search or seizure.34 This suggested rule (one of several viable
alternatives) provides society with the benefit of expedited judicial
regulation of new investigative techniques without inviting burdensome
litigation, disruptions to ongoing lawful investigations, or discontinuity of
precedent.35
This Article proceeds in three parts. Part I identifies the rising costs
of regulatory delay, examines its causes, and surveys the conventional
29. Any number of rules could be enacted to safeguard the rights to be “protected” and “free
from fear.” In Part III, infra, this Article proposes that courts create a rule against adoption of
unregulated and unreasonable investigative techniques.
30. See Oxford English Dictionary, supra note 24, at 1499 (defining “protect” as “to guard
from injury” or “afford immunity to”); Rosenthal, supra note 22, at 538 (“Security may not require
perfect deterrence, but surely demands at least reasonable deterrent efficacy.”).
31. Aggregated costs associated with “regulatory delay” would have been de minimis at the time
of the framing when government actors employed a narrow and fixed set of investigative techniques—
all of which had been subjected to regulatory review. See generally William J. Cuddihy, The Fourth
Amendment: Origins and Original Meanings: 602–1791 (2009).
32. A plaintiff need only plead facts to show that, in regards to a particular investigative
technique, she is not “protected” or “free from fear” (instead of facts demonstrating that she was not
“spared” the challenged technique). Part III, infra, discusses standing implications in greater detail and
proposes important doctrinal limits on the rights to be “protected” and “free from fear.”
33. Judicial regulation does not, of course, prevent government use of regulated techniques. It
merely deters government use of techniques by denying users the benefits of qualified immunity and
the good faith exception to the exclusionary rule. See infra discussion Part I.A.; see also Mary D. Fan,
The Police Gamesmanship Dilemma, 44 U.C. Davis L. Rev. 1407, 1414–17 (2011) (discussing ways to
further counter police gamesmanship, including default penalties for failure to produce data on
unconstitutional conduct).
34. See discussion infra Part III.B.
35. See discussion infra Part IV. Unlike the plaintiffs’ Article III standing argument in Clapper, the
impact of the “protected” and “free from fear” interpretation of the “to be secure” text is limited to
Fourth Amendment cases.
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proposals to expedite the regulatory processes for new investigative
techniques. Part II suggests a new, alternative method to reduce
regulatory delay: interpreting the “to be secure” text of the Fourth
Amendment to safeguard the right to be “protected” against
unreasonable searches and seizures, and perhaps the right to be “free
from fear” against such government action. Part II then examines the
broad reading of “to be secure” against the historical record, studying the
definitions of “secure,” the Amendment’s structure, and founding-era
discourse concerning search and seizure. Part III addresses the practical
implications of a broad reading of “to be secure” and proposes a tailored
Fourth Amendment rule against “adoption” that facilitates expedited
regulation of new investigative techniques while avoiding high collateral
costs.
I. The Problem of Regulatory Delay
Many have written about the costs of failing to regulate investigative
techniques.36 Overlooked in these discussions are the special costs of
delayed regulation.37 The following Subparts describe the phenomenon
of regulatory delay and survey conventional efforts to manage its costs.38
A. Regulatory Delay
The regulation of investigative techniques can take a variety of
forms: legislative, administrative, or judicial.39 Of these forms, judicial
regulation is probably the least straightforward. Judicial regulation of a
new investigative technique occurs, generally speaking, when an appeals
36. See generally Julie E. Cohen, What Privacy Is For, 126 Harv. L. Rev. 1904 (2013); Richard A.
Posner, Privacy, Surveillance, and Law, 75 U. Chi. L. Rev. 245 (2008); Richards, supra note 1.
37. There are exceptions. For helpful discussions of the problem of regulatory delay, see M. Ryan
Calo, The Drone as Privacy Catalyst, 64 Stan. L. Rev. Online 29, 32–33 (2011) (“I . . . believe that the
lack of a coherent mental model of privacy harm helps account for the lag between the advancement of
technology and privacy law.”); Logan, supra note 3, at 1143–47 (identifying rules of appeal as a cause of
regulatory delay). See generally Scott Michelman, Who Can Sue Over Government Surveillance?,
57 UCLA L. Rev. 71 (2009) (focusing on the regulatory delay caused by Article III standing rules).
38. This is not a claim about the specific types and degrees of costs attributable to the use of
investigative techniques. Cf. Cohen, supra note 36; Richards, supra note 1. Those who deliberate
regarding regulation make cost assessments about a technique. The costs of regulatory delay are
simply a function of whatever costs the deliberator attributes to the given technique in its unregulated
state. While society will generally not agree on the types and degrees of harm attributable to a given
technique, it will be able to agree that such harms (whatever their type and degree) are compounded
by regulatory delays. For discussions of the costs of regulatory delay in other contexts, see generally
Ronald R. Braeutigam, The Effect of Uncertainty in Regulatory Delay on the Rate of Innovation,
43 Law & Contemp. Probs. 98 (1979); James E. Prieger, Product Innovation, Signaling, and
Endogenous Regulatory Delay, 34 J. Reg. Econ. 95 (2008).
39. Richards, supra note 1, at 1942 (“American law governing surveillance is piecemeal, spanning
constitutional protections such as the Fourth Amendment, statutes like the Electronic Communications
Privacy Act of 1986 (ECPA), and private law rules such as the intrusion-into-seclusion tort.”).
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court of the relevant jurisdiction establishes constitutional rules for the
technique’s uses.40 This judicial action constitutes “regulation” as it limits
the scope of qualified immunity for future users of the technique.41 It
also deprives future users of any potential availability of the “good faith”
exception to the exclusionary rule.42 The judiciary’s identification of the
standard of constitutionality creates rules of liability and exclusion, which,
in turn, regulate (albeit imperfectly) future government uses of the
technique.
Analyses of regulatory delay should begin with the components of
the regulatory processes.43 Some parts of the regulatory processes are
structural. By “structural,” this Article means rules and procedures that
impact laws and policies beyond the Fourth Amendment and new
investigative techniques.44 In the legislative context, structural parts
include, among other things, committee bottlenecks, the bicameral
process, and the deliberative process.45 When it comes to adjudication,
40. For a more detailed explanation of “judicial regulation,” see infra note 232. See Logan, supra
note 3, at 1177 (“Application of the ‘clearly established’ standard is unremarkable when the
constitutionality of the government behavior in question has been resolved by the Supreme Court or
the forum circuit.”).
41. See Pearson v. Callahan, 555 U.S. 223, 239–43 (2009); Saucier v. Katz, 533 U.S. 194, 201–02
(2000); see also Logan, supra note 3, at 1177–79.
42. Davis v. United States, 131 S. Ct. 2419, 2432 (2011). While the majority held that the
exception applies when police follow binding appellate precedent, it is at least arguable that the goodfaith exception also exists when the law is unsettled within a circuit. See id. at 2439 (Breyer, J., dissenting)
(explaining that if police culpability is a prerequisite for exclusion, then the good faith exception will
apply when clear circuit precedent “just does not exist”); see also Logan, supra note 3, at 1180–82
(discussing the likelihood of a “new ‘good faith’ exception” for police reliance on unsettled case law).
Establishment of a constitutional standard for a given technique can moreover result in an injunction.
See City of Indianapolis v. Edmond, 531 U.S. 32, 36 (2000); see also Orin S. Kerr, The Limits of
Fourth Amendment Injunctions, 7 J. Telecomm. & High Tech L. 127, 128–29 (2009) (stating that “as a
matter of history and practice, injunctive relief has been quite rare in Fourth Amendment cases” and
arguing that judges are ill-equipped to issue broad injunctions in this area of law).
43. The period of preregulation runs from the time a given technique is first used by law
enforcement in the jurisdiction until the time the jurisdiction regulates law enforcement’s use of that
technique. Regulatory delay can last for a decade or more. See generally City of Ontario v. Quon,
130 S. Ct. 2619 (2010) (leaving unregulated the technique of subpoenaing records providing content of
text messages sent on work-issued devices); United States v. Jones, 132 S. Ct. 945 (2012) (regulating
warrantless GPS tracking eight years after “Police Chief Magazine” described the technique as a
“particularly helpful tool”).
44. See Antonin Scalia, Foreword: The Importance of Structure in Constitutional Interpretation,
83 Notre Dame L. Rev. 1417, 1418 (2008) (“The constitutional structure of the United States has two
main features: (1) separation and equilibration of powers and (2) federalism.”).
45. This Article focuses on regulatory delays attributable to law enforcement stalling and, as a
result, is generally not concerned with delays in regulation attributable solely to evolving
understandings of morality, efficiency, or constitutional meaning. Compare Olmstead v. United States,
277 U.S. 438, 467 (1928), overruled by Jones, 132 S. Ct. at 963 (holding that the Court will not
regulate), with Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (holding that the Court is unable
to regulate); see also Calo, supra note 37, at 32–33 (“I . . . believe that the lack of a coherent mental
model of privacy harm helps account for the lag between the advancement of technology and privacy
law.”).
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structural parts include pleading requirements,46 standing rules,47 qualified
immunity,48 and the rules of appeal.49 Interacting with structural parts in
the regulatory processes are doctrinal parts. By “doctrinal,” this Article
means rules and procedures specific to the Fourth Amendment,
including the standards for “search,” “seizure,” “reasonableness,” and
the scope of exclusionary rule exceptions.50
While structural and doctrinal parts bring a “natural” delay to
regulatory processes, much of the actual delay in the regulation of new
investigative techniques is attributable to law enforcement’s exploitation
of these structural and doctrinal parts. Law enforcement’s primary method
of exploitation is concealment of information regarding the existence and
objects of new investigative techniques.51 The following Subpart briefly
surveys law enforcement efforts to conceal information about new
investigative techniques. Such concealment leaves law enforcement
undeterred for long periods of time in their uses of harmful investigative
techniques.
B. Delay by Concealment
Law enforcement agencies utilize several methods to conceal
information about the existence and objects of new investigative
techniques from regulatory processes.52 One method relies on government
claims of privilege.53 Assertions of privilege deprive individuals of
46. See Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). For excellent commentary on Iqbal, see
generally Scott Dodson, New Pleading, New Discovery, 109 Mich. L. Rev. 53 (2010).
47. See Clapper, 133 S. Ct. at 1146–47; Laird v. Tatum, 408 U.S. 1, 13–14 (1972) (“Allegations of a
subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a
threat of specific future harm.”). See generally Michelman, supra note 37.
48. See Pearson v. Callahan, 555 U.S. 223, 231–33 (2009); Saucier v. Katz, 533 U.S. 194, 200–01
(2000); see also Logan, supra note 3, at 1177–79.
49. See Logan, supra note 3, at 1139.
50. Davis v. United States, 131 S. Ct. 2419, 2435–36 (2011) (identifying “good faith exception” to
the exclusionary rule in regards to reliance on appellate decisions); California v. Hodari D., 499 U.S.
621, 624 (1991) (defining “seizure” of a person); United States v. Jacobson, 466 U.S. 109, 114 (1984)
(defining “seizure” of property); Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring) (defining “search”).
51. It should come as no surprise that law enforcement oftentimes conceals new investigative
techniques at the point of their use. After all, the practice of concealing surveillance from targets goes
back millennia. But it is less obvious that law enforcement often seeks general and complete
concealment—not just from the particular target at the point of its specific uses but also from the
legislatures, courts, and general public during the periods before and after such uses.
52. See Catherine Crump & Jay Stanley, Why Americans Are Saying No to Domestic Drones,
Slate
(Feb. 11,
2013),
http://www.slate.com/articles/technology/future_tense/2013/02/
domestic_surveillance_drone_bans_are_sweeping_the_nation.html (“What we usually see happen with
new law enforcement technologies is that agencies quickly and quietly snap them up, making their
deployment a fait accompli before the public even learns of their existence.”).
53. See, e.g., Editorial Board, GPS Tracking and Secret Policies, N.Y. Times, Aug. 17, 2013, at
A18 (documenting claims of privilege to avoid disclosure of memos describing uses of GPS tracking);
see also Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(b)(3) (2014) (providing exemptions
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information practically necessary for legislative and administrative
regulation of new investigative techniques.54 Claims of privilege also
create a “brutal paradox” for individuals seeking to initiate judicial
regulation.55 This paradox manifested recently in the Sixth Circuit case of
ACLU v. NSA.56 Because information regarding the challenged
surveillance had been withheld under the State Secrets Doctrine, the
plaintiffs were unable to meet the Article III standing requirement that
their own communications had been intercepted by the National Security
Agency (“NSA”).57
A second method of concealment concerns funding requests. Law
enforcement has proved adept at securing funds (such as for training or
purchases of equipment) while concealing the specific purpose of the
request from the public.58 It does so by developing pools of discretionary
for “inter-agency or intra-agency memorandums or letters,” materials relating to deliberative process,
attorney-client communications, and “investigative techniques and procedures”). Under the state
secrets privilege, the government may “bar the disclosure of information if there is a reasonable
danger that disclosure will expose military matters which, in the interest of national security, should
not be divulged.” See Al-Haramain Islamic Found., Inc., 507 F.3d 1190, 1196 (9th Cir. 2007) (citations
omitted); see also El-Masri v. United States, 479 F.3d 296, 302–307, 312 (4th Cir. 2007); ACLU v.
NSA, 493 F.3d 644, 650 n.2 (6th Cir. 2007); Halkin v. Helms, 690 F.2d 977, 990 (D.C. Cir. 1982); Terkel
v. AT&T Corp., 441 F. Supp. 2d 899, 908 (N.D. Ill. 2006).
54. If the use is not revealed the government is not likely to draw the ire of the legislatures and is
able to evade any litigation due to case and controversy requirements. Balkin, supra note 12, at 23
(discussing “the executive’s increasing use of secrecy . . . to avoid accountability for its actions”);
Richards, supra note 1, at 1934 (“Although we have laws that protect us against government
surveillance, secret government programs cannot be challenged until they are discovered.”); Ginger
McCall, The Face Scan Arrives, N.Y. Times, Aug. 30, 2013, at A19 (discussing documents regarding
the Biometric Optical Surveillance System acquired through FOIA requests).
55. Richards, supra note 1, at 1944 (stating that this “create[s] a brutal paradox for the plaintiffs:
they could not prove whether their telephone calls had been listened to, and thus they could not
establish standing to sue for the violation of their civil liberties”).
56. ACLU, 493 F.3d at 650–52.
57. Id. at 655; see Balkin, supra note 12, at 23 (“[W]e exclude more and more executive action
from judicial review on the twin grounds of secrecy and efficiency. . . . Judges must also counter the
executive’s increasing use of secrecy and the State Secrets privilege to avoid accountability for its
actions.”); Richards, note 1, at 1960 (explaining that the NSA wiretapping program was “shrouded in
secrecy, denials, and unassessable invocations of national security interests”).
58. See, e.g., Kate Zernike, New Jersey Supreme Court Restricts Police Searches of Phone Data,
N.Y. Times, July 19, 2013, at A1 (“Some departments had manuals advising officers not to reveal the
practice to the public.”); Brian Bennett, Police Employ Predator Drone Spy Planes on Home Front,
L.A. Times, Dec. 11, 2011, at A1; Joe Arnold, LMPD Reveals Use of GPS Tracking, WHAS11
(Nov. 24, 2009, 4:37 PM), http://www.whas11.com/news/local/LMPD-reveals-use-of-GPS-trackingsometimes-without-a-warrant-72633812.html (“Police acknowledged the use of the tracking devices
after WHAS11 News brought a U.S. Attorney’s Office news release that cited Metro Police’s use of
them to LMPD’s attention. The Justice Department apparently did not know that the use of such
devices in Louisville had never been revealed.”); Stephen Dean, Police Line Up to Use Drones on
Patrol after Houston Secret Test, Examiner.com (Jan. 11, 2010), http://www.examiner.com/article/
police-line-up-to-use-drones-on-patrol-after-houston-secret-test (describing a secret drone test in
Houston).
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funds to finance techniques free of regulatory oversight,59 “burying”
funding requests in vague or unrelated budgetary lines,60 classifying
budgets as confidential,61 and—when all else fails—explicitly
misrepresenting the purpose of the funding.62
A third form of concealment involves the sequencing of criminal
investigations.63 The general rule (subject to many exceptions) is that the
fruits of an unreasonable search or seizure are not admissible in a
criminal trial.64 Strategic law enforcement actors have learned, however,
to further prosecutions through the use of undisclosed investigative
techniques.65 They do so by carefully sequencing the steps of
59. See generally Citizens Union of the City of New York, Spending in the Shadows:
Discretionary Funding in the NYS Budget (Sept. 2013), available at http://www.citizensunion.org/
www/cu/site/hosting/Reports/CU_SpendingintheShadows_DiscretionaryFundsinNYS_September_201
3.pdf (documenting the discretionary funds flowing to law enforcement).
60. See, e.g., Scott Shane, New Leaked Documents Outline U.S. Spending on Intelligence
Agencies, N.Y. Times, Aug. 30, 2013, at A13 (“For decades, administrations from both parties have
hidden spy spending in what is popularly known as the ‘black budget.’”).
61. See, e.g., id. (describing budgetary line of “corporate partner access” as a reference to
programs collecting information from Internet companies like Google and Microsoft).
62. See Scott Shane & David E. Sanger, Job Title Key to Inner Access Held by Leaker, N.Y.
Times, July 1, 2013, at A1 (describing the false congressional testimony by Director of National
Intelligence, James R. Clapper, Jr., and inaccuracies of the “fact sheet” posted by NSA on its website
before the leaks by Edward Snowden); see also Peter Baker & Ellen Barry, Leaker’s Flight Raises
Tension for 3 Nations, N.Y. Times, June 25, 2013, at A1 (describing letter from Senators Wyden and
Udall to NSA Director General Keith Alexander inquiring about an “inaccurate statement” regarding
the uses of surveillance). In Alameda County, California, the police department went so far as to
misrepresent its intentions to the Board of Supervisors to conceal the fact that it wanted drones for
“activities like spying on ‘suspicious persons’ and ‘large crowd control disturbances’ and not just for
‘emergency purposes.’” The County Board of Supervisors realized that the agency had misrepresented
its intentions and moved to postpone plans to buy surveillance drones. Trevor Timm, EFF to Argue
Against Surveillance Drone Use at Alameda County, California Public Hearing, Elec. Frontier
Found. (Feb. 13, 2013), https://www.eff.org/deeplinks/2013/02/eff-and-aclu-testify-against-drone-usealameda-county.
63. See Fan, supra note 33, at 1419 (stating that police “are capable of very smart, strategic ploys and
plays with the law” and “are sensitive to shifts in the law—even subtle and less publicized decision rule
shifts that limit remedies for constitutional violations—and can adjust behavior accordingly.”); see also
Tonja Jacobi, The Law and Economics of the Exclusionary Rule, 87 Notre Dame L. Rev. 585, 600–18
(2012) (discussing aggressive policing). Non-disclosure is not overly burdensome in the context of overt
uses (such as when the undisclosed technique was used in a manner in which the target, or at least some
member of the public will be able to provide information about the government action). See generally
Kyllo v. United States, 533 U.S. 27 (2001); United States v. Place, 462 U.S. 696 (1983). But problems arise
when the undisclosed technique is used covertly. See generally Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138 (2013). Surveillance pursuant to the 2008 Foreign Intelligence Surveillance Act Amendment is
unique from other techniques in that the legislation itself provides that the government shall disclose in
criminal cases evidence derived from such surveillance. 50 U.S.C. § 1881e(a) (2012).
64. See, e.g., Herring v. United States, 555 U.S. 136 (2009).
65. See Benjamin Weiser, Judge Says Police and U.S. Agents Misled Court in Manhattan Gun
Possession Case, N.Y. Times, July 1, 2013, at A18 (documenting police decision to omit source of
information in warrant application to protect a confidential informant). When asked whether sources
of information are omitted as a matter of practice, a special agent with ATF responded that “if there
was other evidence that established probable cause for an arrest, and you do not have to risk the safety
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investigations. Strategic sequencing works as follows: the police will
conduct a preliminary investigation with a new, unreviewed technique to
generate “shadow leads” for a formal, above-board investigation.66 In
response to any ensuing motions to suppress, the government will cite
the formal investigation as the source of the challenged evidence.67 This
shifts the burden to the criminal defendant to establish that the new
technique was in fact the original source of the challenged evidence.
As a practical matter, law enforcement’s ability to shift burdens in this
context allows it to secure convictions based on evidence gained from new,
unregulated techniques without being compelled to disclose the use or
existence of such techniques.68 Let me briefly explain. Evidence obtained
by new investigative techniques is not subject to the exclusionary rule if
the government can show that it relied in good faith on binding appellate
precedent.69 As a result, defendants will be reluctant to expend their
limited investigative resources to discover information about the uses of
new techniques when any such discovery is unlikely to increase the
chances of an acquittal or favorable plea deal. Moreover, judges will be
reluctant to hold extensive hearings based on a claim that is likely to be
perceived as desperate speculation on the part of a criminal defendant—
particularly when the facts disclosed by the government already
established the requisite cause.70 Lastly, even if extensive hearings are
of an informant by exposing them, then you try to do that if possible.” Id. See also Rhode Island v.
Patino, No. P1-10-1155A, at *65 (R.I. Super. Ct. Sept. 4, 2012), available at http://www.courts.ri.gov/
Courts/SuperiorCourt/DecisionsOrders/decisions/10-1155.pdf (finding that by “revealing only
evidence of the text messages in which the State claims the Defendant lacks standing—namely, the
text messages on the LG cell phone—while depriving the Defendant of the very evidence that the
State claims he needs to prove standing—namely, proof that the corresponding text messages are on
his cell phone and could have been viewed and, in fact, were viewed by the police at the time of their
search. This prospect turns the law of standing on its head.”).
66. For example, think of illegal GPS surveillance that discloses the residence of a suspect, which
prompts the officers to go to the residence, stake it out, and observe criminal behavior. Strategic officers
would seek a search warrant based on the physical observations of the stakeout (rather than the
information collected through the use of the GPS device).
67. Police have no legal duty to affirmatively reveal all government actions (lawful or otherwise)
that lead to evidence. In other words, it is up to the criminal defendant to identify the illegal source of
the evidence. Surveillance pursuant to the 2008 FISA Amendment is unique from surveillance based
on other techniques in that the legislation itself provides that the government shall disclose in criminal
cases evidence derived from such surveillance. 50 U.S.C. § 1881.
68. See Patino, No. P1-10-11551, at *43 (failing to establish the source of the information
regarding the incriminating evidence after a three week hearing on a motion to suppress).
69. See Davis v. United States, 131 S. Ct. 2419, 2431–32 (2011); see also Logan, supra note 3, at
1180–82 (discussing the possibility of extending the good faith exception to situations in which there is
no settled law within the circuit).
70. There are exceptions. See Patino, No. P1-10-11551 (holding a three-week suppression
hearing); Fan, supra note 33, at 1425 (“One of the most prominent of such decision-framing doctrines
is the general rule of judicial noninquiry into the reasons behind and prevalence of a practice so long
as an officer can point to an ‘objective’ basis at the time for an exertion of power against an
individual—even if offered as a post hoc rationalization.”).
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actually held, a strategic police department will have likely “decentralized”
the investigation in order to reduce the odds that the new investigative
technique would be disclosed during a hearing.71 Decentralization occurs
when one officer generates a lead with a new investigative technique and
a second officer, without knowing the source of the lead, initiates a
formal investigation based on lawful uses of regulated techniques.72
Decentralization allows the second officer to truthfully testify that her
investigation was based on a tip from a fellow officer.73 If the first officer—
who conducted the preliminary investigation with the new technique—is
identifiable and called to testify (which is not likely), she could state
vaguely that the tip reflected “general information gathered from
sources.”74 If pressed further, the officer may refuse to elaborate. Should
the judge threaten the first officer with contempt or conclude that the
source of the evidence was indeed a new investigative technique, the
government can still evade judicial regulation of the new technique by
simply pleading out the case—or, if necessary, moving to dismiss the
information or indictment.75
The recent case of Raees Alam Qazi provides a good example of
strategic investigative sequencing.76 Qazi and his brother were indicted
for planning to bomb targets in New York City.77 His lawyers sought
notice whether the government intended to use evidence derived from
surveillance authorized by section 1881a of the Foreign Intelligence
Surveillance Act (“FISA”) Amendments Act of 2008.78 Prosecutors
responded that it was the defendant’s burden to show that he had
actually been subjected to the programmatic surveillance authorized by
71. See generally Fan, supra note 33; Jacobi, supra note 63.
72. See Smith, supra note 4, at 2 n.11 (documenting that police in one Virginia municipality
secretly used GPS devices to further investigations in nearly 160 cases from 2005 to 2007).
73. Usage will be concealed from many members of the department whom are tasked with simply
responding to leads generated by the new technique.
74. See, e.g., Patino, No. P1-10-11551, at *64 (“In addition, the State did not fill this evidentiary
void with any testimony at the suppression hearing. While the testimony was often quite evasive, if not
wholly lacking in credibility, no officer admitted that he had ever seen the text messages.”).
75. See Eric Schmitt et al., Mining of Data is Called Crucial to Fight Terror, N.Y. Times, June 8,
2013, at A1 (“While most of those accused in those cases pleaded guilty—and therefore much of the
evidence against them was not publicly disclosed.”). If courts require prosecutors to reveal the use of
section 1881a-derived evidence to criminal defendants pursuant to the explicit language of
section 1881, then the government will have increased incentives to plead cases out.
76. United States v. Qazi, No. 12-60298, 2012 WL 7050588 (S.D. Fla. Dec. 19, 2012).
77. Id. at *1–2.
78. See Order of Magistrate Judge John J. O’Sullivan, No. 12-60298 (S.D. Fla. May 6, 2013),
available at http://www.wired.com/images_blogs/threatlevel/2013/05/ORDER-granting-FAA-1806motion-1.pdf; see also Adam Liptak, A Secret Surveillance Program Proves Challengeable in Theory
Only, N.Y. Times, July 16, 2013, at A11. Unlike traditional FISA surveillance, section 1881a does not
require the government to establish probable cause that the target of the surveillance is a foreign
power or agent of a foreign power. 50 U.S.C. § 1881e(a) (2012); Clapper v. Amnesty Int’l USA, 133 S.
Ct. 1138, 1144 (2013).
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section 1881a.79 Alexander Abdo of the American Civil Liberties Union
(“ACLU”) explained that this shift of burden is “a strategy meant to
insulate the 2008 law from judicial review, and thus far the strategy has
succeeded.”80
C. Exploitation and Costs
Law enforcement’s exploitation of the regulatory scheme (through
concealment of the existence and objects of new investigative techniques)
impacts the societal costs of regulatory delay in various ways. Most directly,
exploitation lengthens the periods of delay that, in turn, facilitate more
preregulation uses of investigative techniques. Perhaps less intuitive are
the selection biases that inevitably emerge: the more harmful the
technique, the more likely that disclosure will lead to regulation, and the
harder law enforcement will work to conceal the technique’s adoption
and uses.81
Law enforcement’s ability to exploit the regulatory scheme makes it
almost certain that the costs of regulatory delay will increase in the coming
decades. With each year, law enforcement becomes, on balance, more
strategic in concealing new investigative techniques.82 Moreover, the pool
of new, unregulated techniques available at a given time only deepens.83
Today the pool of unregulated techniques includes satellite surveillance,84
79. Liptak, supra note 78. Following an adverse ruling from the magistrate, the government has
moved to reconsider. Schmitt et al., supra note 75 (“But prosecutors in the Florida case have told a
judge that they are not required to say whether the evidence came from an order under the 2008
law.”). Surveillance pursuant to the 2008 FISA Amendment is unique from other techniques in that
the legislation itself provides that the government shall disclose in criminal cases evidence derived
from such surveillance. 50 U.S.C. § 1881e(a).
80. Schmitt et al., supra note 75. Federal prosecutors have engaged in similar tactics in a Chicago
case of a man accused of attempting to blow up a bar. “They told the Supreme Court not to worry
about reviewing the FISA Amendments Act because it would get reviewed in a criminal case. They
said if they used the evidence in a criminal case, they’d give notice. Now they’re telling criminal
defendants they don’t have to tell them. It’s a game of three-card monte with the privacy rights of
millions of Americans.” Ellen Nakashima, Chicago Federal Court Case Raises Questions About NSA
Surveillance, Wash. Post (June 21, 2013, 11:25 PM), http://www.washingtonpost.com/world/nationalsecurity/chicago-federal-court-case-raises-questions-about-nsa-surveillance/2013/06/21/7e2dcdc8-daa411e2-9df4-895344c13c30_story.html. To defend the successes of section 1881a surveillance, Senator
Dianne Feinstein listed Qazi and Dauod as among the cases strengthened from surveillance pursuant
to section 1881a. See Liptak, supra note 78.
81. This is a theoretical point. For example, law enforcement has a stronger incentive, ceteris
paribus, to delay regulation of a technique with a ninety-five percent likelihood of regulation than one
with a five percent chance.
82. Balkin, supra note 12, at 21 (“They will increase secrecy, avoid accountability, cover up
mistakes, and confuse their interests with the public interest.”).
83. See discussion infra Part I.B.
84. Ima Ituen & Gunho Sohn, The Environmental Applications of Wireless Sensor Networks,
Int’l J. Contents, Dec. 2007, at 1. In 2007, the Department of Homeland Security approved a plan to
allow U.S. law enforcement to turn the nation’s spy satellites inward for use domestically. Joby
Warrick, Domestic Use of Spy Satellites To Widen, Wash. Post, Aug. 16, 2007, at A1; Siobhan
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facial-scanning surveillance,85 cyborg surveillance insects,86 nano
sensors,87 iris scanners,88 bomb-sniffing plants,89 “Smart Dust” motes,90
radio wave hacking,91 and nano-based radio-frequency identification
barcodes.92 Tomorrow’s pool is anybody’s guess. Increases in available,
unregulated investigative techniques pose a uniquely modern problem: law
enforcement can begin to stack regulatory delays upon one another. When
a new technique finally becomes exposed and regulated, law enforcement
can simply turn to its “bullpen” of unregulated techniques and carry on in
its usual, unregulated manner.93 To put it differently: while specific
investigative techniques may be unregulated only temporarily, the deep
pool of new surveillance alternatives, available at any given time, leaves
police unregulated continuously.
D. Efforts to Expedite Regulatory Processes
Several reforms have been proposed to manage the rising costs of
regulatory delay.94 The solution, for some, lies in more proactive
legislative regulation.95 Orin Kerr writes that the recent history of criminal
procedure regulation shows “that legislatures usually act at a surprisingly
early stage.”96 He explains that legislatures are “[u]nburdened by the
procedural barriers that limit and delay judicial power” and can therefore
Gorman, Satellite-Surveillance Program to Begin Despite Privacy Concerns , Wall St. J., Oct. 1, 2008,
at A10.
85. Charlie Savage, Facial Scanning is Making Gains in Surveillance, N.Y. Times, Aug. 21, 2013,
at A1 (describing the progress of the Biometric Optical Surveillance System).
86. See M. Ryan Calo, Robots and Privacy, in Robot Ethics: The Ethical and Social
Implications of Robotics 187, 189–92 (Patrick Lin et al. eds., 2012).
87. Ituen & Sohn, supra note 84, at 1.
88. See Christopher R. Jones, “Eyephones”: A Fourth Amendment Inquiry into Mobile Iris
Scanning, 63 S.C. L. Rev. 925, 927 (2012).
89. See John Roach, Bomb-Sniffing Plants to the Rescue, NBC News (Jan. 27, 2011, 5:14 PM),
http://cosmiclog.nbcnews.com/_news/2011/01/27/5936102-bomb-sniffing-plants-to-the-rescue.
90. See Ituen & Sohn, supra note 84, at 4.
91. See David E. Sanger & Thom Shanker, NSA Devises Radio Pathways Into Computers, N.Y.
Times, Jan. 15, 2014, at A1.
92. See Warrick, supra note 84.
93. One might even imagine a contractor leasing surveillance instruments during the
preregulation period with a guarantee to replace such instruments with new devices once the old ones
are subjected to regulation.
94. For proposals seeking to improve the regulatory processes of investigative techniques, see
Logan, supra note 3, at 1186–92 (proposing a certificate of appealability to resolve circuit splits in an
expedited manner); Kenneth A. Bamberger & Deirdre K. Mulligan, Privacy Decisionmaking in
Administrative Agencies, 75 U. Chi. L. Rev. 75, 96–100 (2008) (discussing the use of “embedded
privacy experts” in the Department of Homeland Security).
95. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and
the Case for Caution, 102 Mich. L. Rev. 801, 806 (2004) (“Judicial deference has often invited
Congressional regulation.”); see also id. at 868 (“Fourth Amendment rules . . . lag behind parallel
statutory rules and current technologies by at least a decade.”).
96. Id. at 870.
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“enact comprehensive rules far ahead of current practice rather than
decades behind it.”97 These expectations of prompt legislation rest,
however, on a historical account that is, according to Daniel Solove,
“haphazard at best.”98 Solove cites Congress’s “hopelessly out of date”
rules regulating electronic surveillance:99 “Throughout the entire
twentieth century and continuing on through the present, there have
been only a few times Congress has made major changes in electronic
surveillance law: in 1934, 1968, 1978, 1986, and 2001.”100
More recently, Jack Balkin observed that, when it comes to
surveillance, “legislative oversight increasingly plays only a limited role
in checking the executive.”101 The emergence of video surveillance offers
a good example. In United States v. Torres, Judge Richard Posner wrote
that “it is anomalous to have detailed statutory regulation of bugging and
wiretapping but not of television surveillance[] in Title III . . . . [A]nd we
would think it a very good thing if Congress responded to the issues
discussed in this opinion by amending Title III to bring television
surveillance within its scope.”102 It speaks volumes that twenty-nine years
later, Congress has yet to regulate video surveillance.103
The recent congressional activity regarding NSA surveillance seems
unique to the NSA and unlikely to signal a new era of expedited
legislative regulation of investigative techniques. First of all, the public’s
sustained focus on the NSA has been due, in large part, to the sensational
circumstances surrounding Edward Snowden and his globe-trotting pursuit
of asylum.104 Second, the NSA surveillance at issue, unlike most
97. Id.
98. See Daniel J. Solove, Panel VI: The Coexistence of Privacy and Security: Fourth Amendment
Codification and Professor Kerr’s Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 769
(2005); see also id. at 748 (finding that Kerr’s “contentions are based on faulty assumptions that are
not well grounded in either theory or practice”). There is little reason to hope that legislators of the
future will be more proactive than those of the past. Id. at 771 (“[I]t usually takes a dramatic event to
spark interest in creating or updating a law. Congress often only gets involved when there is a major
uproar or problem, and unless there is a strong impetus, little new lawmaking occurs.”).
99. Id. at 769 (“[T]here are numerous forms of technology legislatures have not acted on.”).
100. Id. at 769–70 (“Congress has done little to modernize the ECPA in the nearly two decades
since its passage.”).
101. Balkin, supra note 12, at 21.
102. United States v. Torres, 751 F.2d 875, 885 (1984).
103. Bills have been introduced. The Surreptitious Video Surveillance Act of 2010, however, did
not make it out of committee. See Jennifer Stisa Granick & Christopher Jon Sprigman, Op-Ed., The
Criminal N.S.A., N.Y. Times (June 27, 2013), http://www.nytimes.com/2013/06/28/opinion/the-criminalnsa.html (stating that revelations of NSA surveillance “have not enraged most Americans”).
104. Jonathan Weisman, Momentum Builds Against N.S.A. Surveillance, N.Y. Times, July 29,
2013, at A9. Similarly, the current Congress has contemplated measures to restrict the domestic use of
drones. See generally, Preserving Freedom from Unwanted Surveillance Act, H.R. 972, 100th Cong.
(2013); Preserving American Privacy Act, H.R. 637, 100th Cong. (2013); Drone Aircraft Privacy and
Transparency Act, H.R. 1262, 100th Cong. (2013). One explanation for legislative activity in this area
is “that there’s something uniquely ominous about a robotic ‘eye in the sky.’” Crump & Stanley, supra
note 52; Calo, supra note 37, at 33 (stating that drones pose a “vivid and specific instance of a
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investigative techniques, affects practically every person in the United
States—including, not unimportantly, members of Congress.105 Third,
Congress has remained focused on this issue, at least in part, because
NSA officials repeatedly lied to its members about the scope of the
program.106 Fourth, few of the proposed NSA reforms promise to
enhance the regulation of novel investigative techniques.107 As a result,
any legislative regulation of the NSA in particular is not likely to reduce
the general costs of regulatory delay.
Looking beyond legislative solutions, some have argued for more
liberal rules of Article III standing.108 Broader standing rules invite
earlier judicial review, which, in turn, invites earlier regulation of new
investigative techniques.109 Plaintiffs attempting to liberalize standing
rules in order to pursue Fourth Amendment claims have enjoyed only
fleeting successes.110 The Ninth Circuit, for example, broadened the
standard for “injury-in-fact” to include “a sufficient likelihood” of
paradigmatic privacy violation in a digital universe, upon which citizens and lawmakers can premise
their concern”).
105. Id.
106. Id. (quoting Representative Zoe Lofgren’s claim that Congress feels a “grave sense of
betrayal”); Shane & Sanger, supra note 62 (describing the false congressional testimony by Director of
National Intelligence, James R. Clapper, Jr., and inaccuracies of the “fact sheet” posted by NSA on its
website to counter the leaks by Edward Snowden).
107. The President’s Review Group on Intelligence and Communications Technologies
recommended the appointment of a privacy advocate in FISA Hearings. See Liberty and Security in
a Changing World, supra note 20, at 21. President Barack Obama has endorsed the idea of a privacy
panel to offer counsel to the FISA Court about “novel” search methods. See Josh Keller et al.,
Obama’s Changes to Government Surveillance, N.Y. Times, Jan. 17, 2014, at A1. Even if adopted,
most “novel” investigative techniques will not be addressed by the court. First, there are many
techniques that are used for purposes other than foreign intelligence. Second, a confidential FISA
Court ruling will not constitute regulation of parties who are not privileged to access the FISA rulings.
Third, there is reasonable concern that the NSA will not seek a FISA Court order sua sponte before it
utilizes a new investigative technique.
108. Michelman, supra note 37, at 113–14 (“By bringing the treatment of probabilistic injuries in
the surveillance context into line with the rest of standing law, and by recognizing objectively
reasonable chilling-effect injuries, courts can create a body of standing jurisprudence that maintains
the integrity of justiciability doctrine while enabling courts to decide some of our generation’s most
pressing questions about civil liberties, the separation of powers, and the rule of law.”).
109. A judicial finding of unconstitutionality regulates the use of a new surveillance technique by
sapping qualified immunity from actors who use that technique and by foreclosing reliance on the
exclusionary rule’s “good faith” exception. The preferred litigation form is a declaratory judgment.
Motions to suppress, Bivens lawsuits, and § 1983 actions require actual violations. Declaratory
judgments, to the contrary, require either actual or threatened injury. See Clapper v. Amnesty Int’l
USA, 133 S. Ct. 1138, 1163 (2013).
110. The FISA Court has ruled on the constitutionality of at least some new techniques. Eric
Lichtblau, In Secret, Court Vastly Broadens Powers of N.S.A., N.Y. Times, July 7, 2013, at A1. These
reviews are insufficient to check the costs of regulatory delay for numerous reasons. Most importantly,
the FISA opinions are not public, and as a result, they cannot provide law enforcement (at least
outside of the relatively narrow context of FISA surveillance) with sufficient notice to erode the
qualified immunity to civil suits or the good-faith exception to the exclusionary rule.
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injury.111 But in City of Los Angeles v. Lyons, the Supreme Court
reversed, outlining what is needed to satisfy the Article III case and
controversy requirement: “The plaintiff must show that he ‘has sustained
or is immediately in danger of sustaining some direct injury’ as the result
of the challenged official conduct and the threat of injury must be ‘real
and immediate,’ not ‘conjectural’ or ‘hypothetical.’”112 More recently, the
Second Circuit interpreted “injury-in-fact” to encompass acts causing an
“objectively reasonable likelihood” of injury.113 The Supreme Court,
once again, reversed.114 The majority in Clapper v. Amnesty
International was strident: “Although imminence is concededly a
somewhat elastic concept, it cannot be stretched beyond its purpose,
which is to ensure that the alleged injury is not too speculative for
Article III purposes—that the injury is certainly impending.”115 The
Supreme Court has made clear its unwillingness to modify Article III
standing rules to invite earlier judicial review of investigative
techniques.116
111. City of Los Angeles v. Lyons, 461 U.S. 95, 99 (1983); see Lyons v. City of Los Angeles, 656
F.2d 417, 418 (9th Cir. 1981).
112. City of Los Angeles v. Lyons, 461 U.S. 95, 101–02 (1983); see Laird v. Tatum, 408 U.S. 1, 14
(1972) (requiring either a “specific present objective harm or a threat of specific future harm”); ACLU
v. NSA, 493 F.3d 644, 656 (6th Cir. 2007) (“Because there is no evidence that any plaintiff’s
communications have ever been intercepted, and the state secrets privilege prevents discovery of such
evidence . . . the anticipated harm is neither imminent nor concrete—it is hypothetical, conjectural, or
speculative. Therefore, this harm cannot satisfy the ‘injury in fact’ requirement of standing.”).
113. Amnesty Int’l USA v. Clapper, 638 F.3d 118, 134 (2d Cir. 2011).
114. Clapper, 133 S. Ct. at 1155; see ACLU, 493 F.3d at 662 (holding that plaintiffs lacked standing
because they alleged “only a subjective apprehension” of alleged NSA surveillance and “a personal
(self-imposed) unwillingness to communicate”); United Presbyterian Church in the U.S.A. v. Reagan,
738 F.2d 1375, 1380 (D.C. Cir. 1984) (holding that plaintiffs lacked standing to challenge the legality of
an Executive Order relating to surveillance because “the ‘chilling effect’ which is produced by their
fear of being subjected to illegal surveillance and which deters them from conducting constitutionally
protected activities, is foreclosed as a basis for standing”).
115. Clapper, 133 S. Ct. at 1147 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 565 n.2
(1991)). The Court concluded that the plaintiffs’ alleged Fourth Amendment violation was not
“certainly impending.” Id. at 1148. Moreover the Court concluded that “respondents cannot
manufacture standing by choosing to make expenditures based on hypothetical future harm that is not
certainly impending.” Id. at 1143.
116. Litigants have also sought to broaden the limits on vicarious standing. See, e.g., Al-Aulaqi v.
Obama, 727 F. Supp. 2d 1, 15–16 (D.D.C. 2010) (seeking to litigate a violation of plaintiff’s son’s
Fourth Amendment rights). Litigants have had little success. See, e.g., ACLU, 493 F.3d at 673–74
(“[I]t would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth
Amendment cause of action without any evidence that the plaintiffs themselves have been subjected
to an illegal search or seizure.”). Even if the standards for vicarious standing were broadened, there
are few instances in which expanded vicarious liability would actually expedite the regulation of new
investigative techniques. Vicarious standing invites earlier constitutional challenges in those situations
where identifiable victims are not willing or able to pursue litigation. But delays in the regulation of
new investigative techniques are based, at least in part, on the fact that the targets are not identifiable
in the first place. See discussion supra Part I.B.
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Like the calls for more proactive legislation, efforts to liberalize the
rules of Article III standing are unlikely to curb the rising societal costs
of regulatory delay of new investigative techniques. It seems time to
explore alternatives.
II. The Right to Be Secure
One solution to the problem of regulatory delay can be found in the
text of the Fourth Amendment.117 This Part describes the prevailing right
to be “spared,” surveys the contending interpretations of the “to be
secure” text of the Fourth Amendment, and offers a historical and
textual defense of the broad reading of “to be secure.”
A. The Prevailing Right to Be “Spared”
Traditionally the Fourth Amendment has been interpreted to
safeguard a mere right to not be subjected to unreasonable searches or
seizures.118 This right can be rephrased as one to be “spared” an
unreasonable search or seizure.119 In 2013, the Court reaffirmed the
117. See discussion supra note 13.
118. See, e.g., Clapper, 133 S. Ct. at 1154 (holding that section 1881a surveillance does not violate
an individual’s Fourth Amendment rights before the government “acquires” or “intercepts” the
individual’s communications); California v. Hodari D., 499 U.S. 621, 627–29 (1991) (limiting Fourth
Amendment analysis to the moment at which the suspect was actually seized); United States v. Leon,
468 U.S. 897, 906 (1984) (“The wrong condemned by the [Fourth] Amendment is fully accomplished
by the unlawful search or seizure itself.”) (internal quotations omitted); id. at 931–32 (Brennan, J.,
dissenting) (characterizing the majority’s view as implying that the Fourth Amendment’s
“proscriptions are directed solely at those government agents who may actually invade an individual’s
constitutionally protected privacy”) (emphasis added); United States v. Jacobsen, 466 U.S. 109, 114–18
(1984) (limiting Fourth Amendment analysis to the moment at which the property was actually
seized); Chambers v. Maroney, 399 U.S. 42, 47–52 (1970) (confining Fourth Amendment “search”
analysis to the conditions of the actual search commenced several days after vehicle was seized);
Sibron v. New York, 392 U.S. 40, 62 (1968) (rejecting the claim that entire statute was unconstitutional
and limiting Fourth Amendment review “to the reasonableness of the searches and seizures which
underlie these two convictions”); Elkins v. United States, 364 U.S. 206, 223–24 (1960) (holding that
evidence in a federal trial should be suppressed only if it was gained as a result of “an unreasonable
search and seizure by state officers”); Oklahoma Press Publ’g Co. v. Walling, 327 U.S. 186, 195 (1946)
(“The short answer to the Fourth Amendment objections is that the records in these cases present no
question of actual search and seizure.”); San Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 704 (5th Cir.
1991) (“Because the record in this case is devoid of any evidence that [the plaintiff] was personally
subjected to an illegal search or seizure, [the plaintiff] has no standing to assert the rights of third
parties who may have been subjected to such searches or seizures while at [the plaintiff’s store].”).
119. The prevailing narrative is that the Fourth Amendment right to be “spared” has been
safeguarded by certain judicially-created rules. The leading example is the exclusionary rule. See, e.g.,
Herring v. United States, 555 U.S. 135, 141 (2009) (“[T]he exclusionary rule is not an individual right
and applies only where it results in appreciable deterrence.”) (internal quotations omitted); Leon,
468 U.S. at 906 (“[T]he exclusionary rule is neither intended nor able to cure the invasion of the
defendant’s rights which he has already suffered.”) (internal quotations omitted). Another example is
a rule permitting facial invalidation of legislation endorsing procedures to violate the right to be
“spared.” See Berger v. New York, 388 U.S. 41, 90 (1967) (Harlan, J., dissenting) (“The Court
declares, without further explanation, that since petitioner was ‘affected’ by § 813-a, he may challenge
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conventional “spared” reading of the Fourth Amendment in Clapper v.
Amnesty International.120 All nine justices agreed that a communications
surveillance program does not violate an individual’s Fourth
Amendment rights before the government succeeds in “intercepting” or
“acquiring” the individual’s communications.121 The Court made clear,
once again, that the Fourth Amendment is not violated by threats or
attempts to conduct an unreasonable search or seizure.122 Nor are an
individual’s Fourth Amendment rights violated by the adoption and use
of a vast surveillance program that happens to spare the individual
claimant.123
The Fourth Amendment can be read, however, to safeguard more
than a right to be “spared.”124 The Amendment provides that the “right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated.”125 In
the “to be secure” language, one might look for a right to be “protected”
against unreasonable searches and seizures, and perhaps even a right to
be “free from fear” against such searches and seizures.126
its validity on its face.”); Warshak v. United States, 490 F.3d 455, 477 (6th Cir. 2007) (“Under Berger,
facial invalidation is justified where the statute, on its face, endorses procedures to authorize a search
that clearly do not comport with the Fourth Amendment.”). But see Sibron, 392 U.S. at 59–62 (1968)
(stating the Court’s preference for as-applied challenges).
120. Clapper, 133 S. Ct. at 1154–55.
121. Id. (explaining that the Fourth Amendment cannot be violated by a communications
surveillance program before communications are “intercepted” or “acquired”); id. at 1155 (Breyer, J.,
dissenting) (stating that the plaintiff’s Fourth Amendment rights are only violated if the government
“intercept[s] at least some of their private, foreign, telephone, or e-mail conversations”); see ACLU,
493 F.3d at 688 (Gibbons, J., concurring) (“The disposition of all of the plaintiffs’ claims depends upon
the single fact that the plaintiffs have failed to provide evidence that they are personally subject to the
[challenged program].”).
122. Hodari D., 499 U.S. at 625–26; Maroney, 399 U.S. at 46–53 (1970). The constitutional
requirements for valid warrants inform the standard for a “reasonable” search or seizure. Thus, a
search or seizure pursuant to a defective warrant violates the right to be “spared” an unreasonable
search or seizure. See Groh v. Ramirez, 540 U.S. 551, 563 (2004) (“Because petitioner did not have in
his possession a warrant particularly describing the things he intended to seize, proceeding with the
search was clearly ‘unreasonable’ under the Fourth Amendment.”).
123. Clapper, 133 S. Ct. at 1143.
124. There is a large literature on the values animating the Fourth Amendment. See Luke M.
Milligan, The Real Rules of “Search” Interpretations, 21 Wm. & Mary Bill Rts. J. 1, 3 n.3 (2012)
(documenting the various Fourth Amendment values identified by scholars). Framing the right as one
to be “spared” does not resolve the question of the values protected by the right. Neither does framing
the right more broadly as one to be “protected” or “free from fear.” The interpretive shift advocated
in this paper sheds little to no light on the question of whether the Amendment prioritizes property,
privacy, or power.
125. U.S. Const. amend. IV (emphasis added).
126. Unlike “spared,” the term “protected” implies a degree of immunity. See Oxford English
Dictionary, supra note 24, at 677 (defining “protect” as “to guard from injury” or “afford immunity
to”). Unlike both “spared” and “protected,” the term “free from fear” turns on perceptions rather
than actualities.
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Judicial recognition of a right to be “protected” or “free from fear”
would almost certainly reduce the costs of regulatory delay. Both rights
are, in important ways, broader than the right to be “spared”: the term
“protected” implies some degree of immunity, while “free from fear” turns
not on actualities but perceptions.127 As a result, an individual “spared” an
investigative technique can nonetheless suffer a violation of her right to
be “protected” or “free from fear.”128 This is a critical point. It means
that Fourth Amendment claimants can establish standing to challenge the
constitutionality of a given investigative technique even when information
about the objects of the technique has been successfully concealed by law
enforcement.129 Expedited standing invites earlier judicial regulation of
new investigative techniques, which, in turn, helps to curb the rising costs
of regulatory delay.130
B. Contending Interpretations of “to Be Secure”
In contrast to its textual counterparts (such as “search,” “seizure,”
and “unreasonable”), the Fourth Amendment’s “to be secure”
phraseology has been largely ignored.131 The courts have never explicitly
defined “to be secure,”132 and commentators (absent a few exceptions)
have shown little interest in these three words.133
127. See id. (defining “protect” as “to guard from injury” or “afford immunity to”); Rosenthal, supra
note 22, at 538 (“Security may not require perfect deterrence, but surely demands at least reasonable
deterrent efficacy.”). Jed Rubenfeld has equated being “protected against” and being “spared.”
Rubenfeld, supra note 22, at 120 (“If ‘secure’ is read essentially to mean ‘protected,’ the ‘right to be
secure’ becomes a kind of grammatical excess in the Fourth Amendment’s text, playing no operative or
independent role of its own.”). I disagree with Rubenfeld on this point. See discussion infra Part II.B.
128. The term “protected” implies some degree of immunity, while “free from fear” turns on
perceptions rather than actualities. See Oxford English Dictionary, supra note 24, at 677 (defining
“protect” as “to guard from injury” or “afford immunity to”). See discussion infra Part II.B.
129. Numerous rules could safeguard the rights to be “protected” and “free from fear.” Part III.B,
infra, proposes a rule against adoption of unregulated and unreasonable investigative techniques.
130. Judicial review is no panacea. The protections of the Fourth Amendment have been narrowed
in the name of collective security. See Daniel J. Solove, The Digital Person: Technology and
Privacy in the Information Age 202 (2004); Balkin, supra note 12, at 19 n.71. With that said, many
new surveillance techniques are close analogues to regulated techniques and therefore seem, once
under review, likely candidates for judicial regulation. See Richards, supra note 1, at 1952
(“Constitutional law and standing doctrine alone will not solve the threat of surveillance to intellectual
freedom and privacy, but they are a good place to start.”).
131. A recent exception can be found in the Executive Summary of the President’s Review Group
on Intelligence and Communications Technology. See Liberty and Security in a Changing World,
supra note 20, at 76 (“In Latin, the word ‘securus’ offers the core meanings, which include ‘free from
care, quiet, easy,’ and also ‘tranquil; free from danger; safe.’”); id. at 75 (“In a free society, one that is
genuinely committed to self-government, people are secure in the sense that they need not fear that
their conversations and activities are being watched, monitored, questioned, interrogated, or
scrutinized. Citizens are free from this kind of fear.”) (emphases added).
132. Rubenfeld, supra note 22, at 119 (observing that the “right to be secure” text “play[s] little
role in current doctrine”). While the Court has not interpreted “to be secure,” it has on occasion made
reference to the value of “security.” In Hoffa v. United States, the Court wrote that “the Fourth
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One of the notable exceptions is Thomas Clancy. Clancy has written
extensively on the meaning of “to be secure.” Based on historical
analyses, Clancy has repeatedly concluded that the “right to be secure” is
equivalent to the “right to exclude.”134 The “ability to exclude,” writes
Clancy, “is so essential to the exercise of the right to be secure that it is
proper to say that it is the equivalent to the right—the right to be secure
is the right to exclude.”135 Importantly, Clancy has clarified that the
“right to exclude” is only violated by actual intrusions.136 He explained
that: “With the ability to exclude, a person has all that the Fourth
Amendment promises: no unjustified intrusions by the government. In
other words, the Fourth Amendment gives the right to say, ‘No,’ to the
government’s attempts to search and seize.”137 In this way, Clancy’s
conclusions about the meaning of “to be secure” trace the Supreme
Court’s view that the Fourth Amendment safeguards a mere right to be
“spared” unreasonable searches and seizures.138
Clancy’s analysis of “to be secure” is historical, resting primarily on
the events that formed colonial views on general warrants.139 The first of
Amendment protects . . . the security a man relies upon when he places himself or his property within
a constitutionally protected area.” 385 U.S. 293, 301 (1966). See Soldal v. Cook Cnty., Ill., 506 U.S. 56, 69
(1992) (“What matters is the intrusion on the people’s security from governmental interference.”);
Camara v. Mun. Court, 387 U.S. 523, 529 (1967) (“The right of officers to thrust themselves into a home is
also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable
security and freedom from surveillance. When the right of privacy must reasonably yield to the right of
search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement
agent.”) (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)).
133. See Rosenthal, supra note 22, at 538 (“The term ‘secure’ is often ignored in discussions of the
Fourth Amendment.”). Thomas Davies has written extensively on the original meaning of the Fourth
Amendment. See, e.g., Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L.
Rev. 547 (1999). Yet Davies’s treatment of “to be secure” has been relegated to a footnote. Id. at 685
n.385 (writing that the “right to be secure” is “a label that anchored the ban against general warrants
in the larger set of common-law protections of person and house”).
134. Clancy, Property, Privacy, or Security, supra note 22, at 353 (“The Framers valued security
and intimately associated it with the ability to exclude the government.”). See Clancy, Collective
Right, supra note 22, at 262 n.57 (describing the “right to be secure” as the “right to exclude”); Clancy,
James Otis, supra note 22, at 504 (“To look beyond the right to exclude and seek positive attributes to
the right to be secure, whether those attributes be called privacy or something else, serves to limit—
and ultimately defeat—that right.”).
135. Clancy, Property, Privacy, or Security, supra note 22, at 308.
136. Id. at 347 n.272.
137. Clancy, James Otis, supra note 22, at 504–05.
138. Clancy’s view of “to be secure” is aligned with the Court’s jurisprudence insomuch as he
views Fourth Amendment rights as limited to “actual” encroachments. See Clancy, Property, Privacy,
or Security, supra note 22, at 374 n.272. Yet Clancy breaks from Court precedent when he claims that
the Fourth Amendment only prohibits encroachments of persons, houses, papers, and effects. See
Clancy, James Otis, supra note 22, at 506. But cf. Smith v. Maryland, 442 U.S. 735, 744–45 (1979) (holding
that the Fourth Amendment protects “expectations of privacy”); Katz v. United States, 389 U.S. 347, 361
(1967) (Harlan, J., concurring) (arguing that the Fourth Amendment protects “expectations of privacy”).
139. See Clancy, Collective Right, supra note 22, at 257 (“[T]he period immediately preceding the
American Revolution directly served as a catalyst for the Amendment’s adoption; it is also the portion
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these events was James Otis’s protest against the writs of assistance.140
Clancy points to Otis’s argument that “a man’s house is his castle; and
while he is quiet, he is as well guarded as a prince in his castle.”141 Clancy
moreover explains that Otis’s “main focus was on the dangers to the
security of each individual from the uncontrolled authority to search.”142
The second colonial influence emphasized by Clancy is Lord Camden’s
opinion in Entick v. Carrington.143 To show that “to be secure” protects
persons against no more than actual intrusions violating the “right to
exclude,” Clancy couples the language in Entick that the “great end, for
which men entered into society, was to secure their property”144 with
Camden’s maxim that “[n]o man can set his foot upon my ground
without my [license].”145
Clancy’s historical research is detailed, and his argument that “the
right to exclude” (i.e., a right to be spared an actual intrusion) was
central to the framers’ understanding of the right “to be secure” is
persuasive. But Clancy stands on softer ground when he infers that “to
be secure” meant nothing more than the right to be spared an actual
intrusion. After all, none of the historical sources cited by Clancy
necessarily forecloses broader readings of the “to be secure” text.146
Moreover, Clancy’s narrow interpretation of “to be secure” conflicts with
of the historical record that is most often recalled in Supreme Court opinions and by leading
commentators.”).
140. Id. at 257–58; see Clancy, Property, Privacy, or Security, supra note 22, at 352–53.
141. Clancy, Collective Right, supra note 22, at 258. Clancy also relies on a Boston Gazette article
from 1762 (likely penned by Otis) which argued that if the writs were to be granted “every
househoulder [sic] in this province, will necessarily become less secure than he was before this writ.”
Clancy, Property, Privacy, or Security, supra note 22, at 352 (citing Josiah Quincy, Jr., Reports of
Cases Argued and Adjudged in the Superior Court of Judicature of the Province of
Massachusetts Bay Between 1791 and 1772 471 (1865) (quoting Boston Gazette, Jan. 4, 1762)).
142. Clancy, James Otis, supra note 22, at 495.
143. Clancy, Collective Right, supra note 22, at 259 (citing Entick v. Carrington, (1765) 95 Eng.
Rep. 807 (K.B.)).
144. Id. at 259 (quoting Entick, 95 Eng. Rep. at 807).
145. See Clancy, Property, Privacy, or Security, supra note 22, at 351 (quoting Entick, 95 Eng. Rep.
at 807). Clancy finds evidence for his interpretation of the right “to be secure” in other sources as well.
He cites William Pitt’s declaration that “[i]t may be frail; its roof may shake; the wind may blow
through it; the storm may enter; but the King of England cannot enter; all his force dares not cross the
threshold of the ruined tenement.” Id. at 351–52 (citing Nelson B. Lasson, The History and
Development of the Fourth Amendment to the United States Constitution 49–50 (1937)). He
moreover cites John Dickinson’s “Farmer’s Letters,” which criticize the writs of assistance as
“dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s
house as his castle, or a place of perfect security.” Id. at 352 (emphasis omitted) (citing M.H. Smith,
The Writs of Assistance Case 493 (1978)). Clancy also relies on a committee in Boston appointed
“to state the Rights of the Colonists,” which provided that “[w]henever they are pleased to say they
suspect there are in the House, Wares, [etc.] for which the Duties have not been paid. Flagrant
instances of the wanton exercise of this Power, have frequently happened in this and other seaport
Towns. By this we are cut off from that domestic security which renders the Lives of the most unhappy
in some measure agreeable.” Id. at 352–53 (quoting Quincy, supra note 141, at 466, 471).
146. See discussion infra Part II.B.
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alternative readings found in the literature. Thirty years ago, for
example, Richard McAdams argued that:
[T]he amendment guarantees the people a right to be “secure,” a word
that means “free from fear, care, or anxiety: easy in mind . . . having no
doubt.” Manifestly concerned with the repose of the people, the
framers of the fourth amendment did not merely create a right of
individuals to be free from unreasonable searches or seizures, but a
societal right to be free from the fear such practices create. 147
More recently, Jed Rubenfeld wrote:
Grant, then, if only provisionally and for the sake of argument, that we
ought to read the Fourth Amendment as written. Stipulate that the
people’s right “to be secure in their persons, houses, papers, and
effects” is a thing of independent meaning and value, and that
guaranteeing it was and is the amendment’s whole point. A different
command then emerges from the Fourth Amendment’s text.
. . . The meaning of “unreasonable” would instead depend on the
meaning of “the people’s right to be secure.”
What is this insecurity?
It is the stifling apprehension and oppression that people would
justifiably experience if forced to live their personal lives in fear of
appearing “suspicious” in the eyes of the governmental authorities.148
Generally speaking, the “protected” and “free from fear” readings of “to
be secure” have been offered equivocally and in contexts peripheral to
their authors’ central theses. As a result, the broad interpretations of “to
be secure” have not been subjected to extensive textual and historical
analyses.149
147. McAdams, supra note 22, at 318–19 (“A close reading of the fourth amendment supports the
notion that people as a group have a right to be confident that the government will not make
unreasonable intrusions into their ‘persons, houses, papers and effects.’”) (emphasis in original).
148. Rubenfeld, supra note 22, at 122, 127.
149. See Timothy Casey, Electronic Surveillance and the Right To Be Secure, 41 U.C. Davis L.
Rev. 977, 1030–31 (2008) (omitting historical and textual analysis of “to be secure”); McAdams, supra
note 22, at 318–19 (limiting discussion to a paragraph of analysis and a citation to Webster’s
Dictionary); Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev. 1209,
1241 n.112 (2010) (limiting comment to a footnote and omitting textual and historical analysis);
Rosenthal, supra note 22, at 536 (limiting discussion to one page and omitting substantial historical
and textual analysis). Jed Rubenfeld offers the most developed argument for a broad reading of “to be
secure.” Rubenfeld, supra note 22, at 122. Yet Rubenfeld’s analysis is limited in certain ways. First, his
interpretation is confined to the “free from fear” reading—as he equates being “protected” with being
“spared.” Id. at 120 (“If ‘secure’ is read essentially to mean ‘protected,’ the ‘right to be secure’
becomes a kind of grammatical excess in the Fourth Amendment’s text, playing no operative or
independent role of its own.”). Second, his analysis includes only a limited discussion of the original
meaning of the “to be secure” text. Id. at 127–29 (discussing views of “security” held by John Stuart
Mill and Francis Lieber). Lastly, he emphasizes that his broad interpretation is offered “only
provisionally and for the sake of argument.” Id. at 122.
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C. Analyzing the Broad Interpretation of “to Be Secure”
Clancy’s conclusion about the meaning of “to be secure” sits at odds
with the broader (but less developed) interpretations in the search-andseizure literature.150 This Subpart seeks a more complete description of
the original meaning of “to be secure.” It does so by assessing the merits
of the broad readings in the light provided by definitions and usages,
constitutional structure, and pre-ratification discourse concerning
searches and seizures.151
1.
Definitions and Usages of “Secure”
The dictionary definitions of “secure” establish that the core
meanings of “secure” are separate and distinct from “spared.” Samuel
Johnson’s Dictionary of the English Language and the Oxford English
Dictionary give “secure” two unique definitions. They define “secure” as
“protected from . . . danger,” and alternatively, “free from fear.”152
Importantly, neither definition of “secure” can fairly be used to convey the
meaning of “spared.”
It is improper to read the meaning of “spared” into the “free from
fear” definition of “secure.” Unlike “spared,” the expression “free from
fear” contains necessary “perspective” elements. Preratification writings
confirm the distinction between “spared” and the “free from fear” usage
of “secure.” For example, Henry More, in An Antidote Against Atheism,
wrote that “Caesar taking the Omen . . . enters Italy, secure of success
from so manifest tokens of the favour of the Gods.”153 In Paradise Lost,
150. See supra discussion Part II.A.
151. See Thomas K. Clancy, The Framers’ Intent: John Adams, His Era, and the Fourth
Amendment, 86 Ind. L.J. 979, 983 (2011) [hereinafter Clancy, John Adams] (“Historical analysis
remains a fundamentally important tool to interpret the words of the Fourth Amendment.”); David A.
Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1772 (2000)
(“[W]hatever its limitations as theory, the new Fourth Amendment originalism has distinct strengths
as rhetoric.”) (emphasis omitted); David A. Strauss, Common Law Constitutional Interpretation,
63 U. Chi. L. Rev. 877, 878 (1996) (“An air of illegitimacy surrounds any alleged departure from the
text or the original understandings.”). But see Davies, supra note 133, at 740–41 (“Applying the
original meaning of the language of the Fourth Amendment in a completely changed social and
institutional context would subvert the purpose the Framers had in mind when they adopted the text.”
(emphasis omitted)).
152. Oxford English Dictionary, supra note 24, at 851 (defining “secure” as: “free from . . .
danger, safe”; “protected from or not exposed to danger”; or being “free from fear or anxiety”);
Johnson Dictionary, supra note 24, at 1777 (defining “secure” as: “free from danger, that is safe”; “to
protect”; “to insure”; “free from fear”; or “sure, not doubting”). “Free from . . . danger” is elsewhere
explained to mean “protected from or not exposed to danger.” Moreover, the term “safe” is defined as
“protected.” Oxford English Dictionary, supra note 24, at 851. While one might object that “safe”
can be alternatively defined as “unaffected” (which is akin to “spared.”), “safe”—as used in the
definition of “secure”—is paired with “free from danger.” In order for these paired terms to share a
meaning, “safe” can only be understood by its “protected” meaning. Id. at 355.
153. Henry More, An Antidote Against Atheism: Or, an Appeal to the Natural Faculties of
the Mind of Man 186 (1653) (emphasis omitted). In other words, Caesar was largely free from fear
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published in 1667, John Milton wrote that “[b]ut confidence then bore
thee on, secure Either to meet no danger, or find Matter of glorious
trial.”154 Both Milton and More used the word “secure” to describe not
an objective circumstance but rather a perspective. Because “spared”
lacks these “perspective” elements, it simply cannot be read into the
“free from fear” definition of “secure.”
It would be similarly odd to read the meaning of “spared” into the
“protected” definition of “secure.” Unlike “spared,” the term “protected”
implies a valued degree of immunity.155 The difference between “spared”
and “protected” is illustrated by a 1746 passage from William Warburton:
“For by the Equity of our Civil Constitution the Consciences of Men are
not only left in Freedom, but protected in their liberty.”156 Warburton
makes clear the state of being “left” alone (i.e., spared) is distinct from
(and generally less valued than) being “protected.”
Pre-ratification writings further demonstrate that the “protected”
usage of “secure” conveyed a meaning separate and distinct from that of
“spared.” The Oxford English Dictionary gives us the following example:
“A very safe road, secured from all winds.”157 The road at issue was
“secure” from the winds not simply because the air was still but because
the road enjoyed some degree of immunity from potential winds. If the
road had instead been exposed to winds that, due to chance, never came,
then it would have been improper to claim the road “secure.” William
Shakespeare’s Titus Andronicus is also instructive on this point: “Repose
you here in rest, Secure from worldly chaunces and mishaps.”158 Rome’s
“readiest champions” were “secure” not simply because they would not
regarding his chances of success. See G.J. Barker-Benfield, Abigail and John Adams: The
Americanization of Sensibility 115 (2010) (“At Harvard, John [Adams] may as well have read the
Cambridge Platonist Henry More’s definition of humanity.” (emphasis omitted)).
154. John Milton, Paradise Lost, ix: 1175 (1667). Paradise Lost was read by many of the
founders. See, e.g., John Adams, Diary, in 2 The Works of John Adams, Second President of the
United States: with a Life of the Author, Notes and Illustrations, By His Grandson Charles
Francis Adams 3, 14 (Boston 1850–1856) (documenting that Adams wrote in his diary at age twenty
that “Reading Milton. . . . I can only gaze at him with astonishment, without comprehending the vast
compass of his capacity.”); Henry Wasser, John Quincy Adams on the Opening Lines of Milton’s
Paradise Lost, 42 Am. Literature 373, 373 (1970) (“If the Adamses had a cultural hero, it was surely
John Milton.”); John Chester Miller, Alexander Hamilton and the Growth of a New Nation 28
(2003) (stating that Hamilton had read Paradise Lost).
155. See Oxford English Dictionary, supra note 24, at 677 (defining “protect” as “to guard from
injury” or “afford immunity to”); Rosenthal, supra note 22, at 538 (“Security may not require perfect
deterrence, but surely demands at least reasonable deterrent efficacy.”). Take, for example, the
statement: “I was protected against a mugging when my bodyguard was near.” It is clear that the
speaker is not simply saying: “I was not mugged when my bodyguard was near.” But see Rubenfeld,
supra note 22, at 120 (equating “protect” and “spared”).
156. William Warburton, A Sermon Occasioned By the Present Unnatural Rebellion 6 (2d
ed. 1746).
157. See Oxford English Dictionary, supra note 24, at 852 (emphasis added).
158. William Shakespeare, Titus Andronicus act 1, sc. 1 (1594) (emphasis added).
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be subjected to worldly mishap, but rather because they were dead and,
as a result, enjoyed immunity from such mishap. If instead the soldiers
had been merely wounded but, due to chance, never subjected to “worldly
mishap,” it would have been wrong for Titus to have deemed them
“secure.”159
Dictionaries aside, the claim that “secure” means “protected” or
“free from fear” (but not “spared”) can be substantiated by influential
pre-ratification discourse concerning searches and seizures.160 Following
James Otis’s landmark criticism of the writs of assistance in Paxton’s
Case,161 it was written anonymously (most likely by Otis himself)162 that:
[E]very hous[e]holder in this province, will necessarily become less
secure than he was before this writ had any existence among us; for by
it, a custom house officer or any other person has a power given him,
with the assistance of a peace officer, to enter forcibly into a dwelling
house, and rifle any part of it where he shall please to suspect
uncustomed goods are lodg[e]d!—Will any man put so great a value on
his freehold, after such a power commences as he did before? . . . Will
any one then under such circumstances, ever again boast of british
honor or british privilege?163
The emphasis here on “less secure” and “every householder” is telling.
When the author wrote that “every householder . . . will necessarily
become less secure,” he surely did not mean to say that every householder
will necessarily be subjected to more actual searches than before the writ
was allowed. To the contrary, by “less secure” the author probably meant
that every householder will necessarily be less protected, or perhaps
alternatively, more fearful.164 The “protected” and “free from fear”
159. The Oxford English Dictionary also quotes a 1756 usage of “secure”: “Is the Watch doubled?
Are the Gates secur’d Against Surprize?” Oxford English Dictionary, supra note 24, at 852. The
speaker would not be satisfied with the answer: Yes, Your Heiness, the enemy is still 300 yards away.
Obviously the speaker wants to know if the gates will hold up if an attack comes. In other words, the
Gates could still be “insecur’d Against Surprize” even if no attack came.
160. But see Clancy, Property, Privacy, or Security, supra note 22, at 350 (stating that the “term
‘secure’ in a non-Fourth Amendment context has been associated with being safe or free from
danger”) (emphasis added).
161. There is no report of the case. The Supreme Court has described Otis’s argument in Paxton’s
Case as “perhaps the most prominent event which inaugurated the resistance of the colonies to the
oppressions of the mother country.” Boyd v. United States, 116 U.S. 616, 625 (1886) (“‘Then and
there,’ said John Adams, ‘was the first scene of the first act of opposition to the arbitrary claims of
Great Britain. Then and there the child Independence was born.’”); Cuddihy, supra note 31, at 382
(“His proclamation that only specific writs were legal was the first recorded declaration of the central
idea to the specific warrant clause.”).
162. See M.H. Smith, The Writs of Assistance Case 562–66 (1978) (designating a Boston Gazette
article as an “Article, probably by James Otis, in the Boston Gazette for 4 January 1762”); Davies,
supra note 133, at 562 n.20 (claiming that the article was “probably authored by James Otis”);
Rubenfeld, supra note 22, at 121 n.90 (stating that the article was “probably written by Otis himself”).
163. Quincy, supra note 141, at 489 (emphasis added).
164. The word “secure” is also attributed to Otis in additional contexts. Otis stated that a “man is
accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread
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readings of “secure” in this instance are further supported by the
author’s subsequent statement that the cost of being “less secure” is
incurred at the moment the “writ had any existence among us.”165 Had
the author intended “less secure” to mean “subject to more searches,” he
would have designated the execution of the writ—not the moment of its
existence—as the point at which costs were incurred.166 Similarly, the
author makes clear that it is the writ’s “power” (rather than its
execution) that devalues “freeholds” and quiets “boasts of British
honor.”167
If this were not enough, it also seems that the original author of the
“to be secure” phraseology, John Adams, actually understood “secure” to
have a meaning separate and distinct from “spared.” In his original notes
in Paxton’s Case, Adams transcribed Otis as stating that a “Man, who is
quiet, is as secure in his House, as a Prince in his Castle.”168 Fifty years
later, when he converted his notes into an abstract, Adams made clear
that he had interpreted Otis’s use of “secure” to mean “protected” rather
than simply “spared.”169 In that later version, Adams used “wellguarded” as a substitute for “secure,” quoting Otis as saying that a
“man’s house is his castle; and whilst he is quiet, he is as well-guarded as
a prince in his castle.”170
2. Structure of the Fourth Amendment
Founding-era definitions and writings suggest that the term “secure”
meant not “spared” but either “protected” or “free from fear.” The
following paragraphs examine the framers’ use of “secure” within the
context of the Fourth Amendment.
terror and desolation around him, until the trump of the Archangel shall excite different emotions in
his soul.” Id. at 488 (quoting James Otis, On the Writs of Assistance—Before the Superior Court
of Massachusetts (1761)) (emphasis added). If a man is not accountable then he is “protected” (and
likely confident) in his “tyranny.” It would be odd for one to be “reigning” in “tyranny” if he had
simply been “spared” accountability. It is therefore highly likely that Otis was using “secure” in this
context to mean “protected” or “free from fear.”
165. See id.
166. Along these lines, Otis argued that the writs were “most destructive of English liberty” not
because of the frequency of their use but rather because they could be used at the whim of
government officials: the “liberty of every man [is placed] in the hands of every petty officer.” Id.; see
discussion infra Part II.C.
167. See Quincy, supra note 141, at 489.
168. John Adams, Petition of Lechmere (Argument on Writs of Assistance) 1761, in 2 Legal
Papers of John Adams 106, 125 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965) (emphasis added).
169. Clancy, Property, Privacy, or Security, supra note 22, at 351–53 (explaining the discrepancy).
170. John Adams, Appendix A, in 2 The Works of John Adams, Second President of the
United States: with the Life of the Author, Notes and Illustrations, By His Grandson Charles
Francis Adams 3, 14 (1856) (emphasis added). The discrepancy, according to Clancy, “results from
the two sources of the speech.” Clancy, Property, Privacy, or Security, supra note 22, at 352 n.316
(“[T]he first is from Adams’ original notes [while] the second is from Adams’ abstract made 50 years
after the argument.”).
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At the time of ratification, seven states had adopted Fourth
Amendment analogues.171 Of these, only three (Massachusetts, New
Hampshire, and Pennsylvania) used the language “be secure.”172 The
Massachusetts clause, authored by John Adams, emerged as the model
for the federal Amendment on searches and seizures.173 Article XIV of
the Massachusetts Constitution provided, in pertinent part, that “[e]very
subject has a right to be secure from all unreasonable searches and
seizures of his person, his houses, his papers, and all his possessions.”174
The Fourth Amendment, in its final, ratified form, states that:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated; and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized. 175
Unfortunately, the Amendment’s drafting history provides no real
guidance on the meaning of “to be secure.”176
The Fourth Amendment is naturally divided into two parts: the
Reasonableness Clause and the Warrant Clause. Both parts inform
structural analyses of the meaning of “to be secure.” The first salient
feature of the Reasonableness Clause is that it safeguards the “right of
the people to be secure.”177 The reference to “the people” is difficult to
171. See George C. Thomas III, Time Travel, Hovercrafts, and the Framers: James Madison Sees
the Future and Rewrites the Fourth Amendment, 80 Notre Dame L. Rev. 1451, 1465 n.63 (2005).
172. Id. at 1465.
173. See Clancy, John Adams, supra note 151, at 1029; Alexander H. Bullock, The Centennial
of the Massachusetts Constitution 18 (1881) (quoting Adams as saying, “I made a constitution for
Massachusetts, which finally made the constitution of the United States”).
174. Mass. Const. art. XIV (emphasis added). The text was drafted in 1779 by John Adams and
adopted in 1780. See Clancy, John Adams, supra note 151, at 1027–29; see also N.H. Const. of 1784, art.
XIX (“Every subject hath a right to be secure from all unreasonable searches and seizures of his person,
his houses, his papers, and all his possessions.”). Like Massachusetts and New Hampshire, Pennsylvania
had an “unreasonableness clause.” Pa. Const. of 1776, Declaration of the Rights, art. I § 8.
Pennsylvania’s second Constitution, ratified in 1790, provided that the people “shall be secure in their
persons, houses, papers and possessions, from unreasonable searches and seizures.” Pa. Const. of 1790,
art. IX § 8.
175. U.S. Const. amend. IV (emphasis added).
176. Cuddihy, supra note 31, at 730–34; Clancy, John Adams, supra note 151, at 1047 (“The
congressional history concerning the evolution of the final form of the amendment’s language is sparse
and somewhat disputed. The provision generated very little recorded debate.”); see id. at 1028 (stating
that John Adams, the author of the Massachusetts template, “never seems to have commented on the
Massachusetts search and seizure provision”).
177. U.S. Const. amend. IV (emphasis added). Courts and most commentators today treat the
Fourth Amendment as safeguarding an individual right. See Dist. of Columbia v. Heller, 554 U.S. 570,
579 (2008) (stating that the Fourth Amendment “unambiguously refer[s] to individual rights, not
‘collective’ rights, or rights that may be exercised only through participation in some corporate body”);
Donald L. Doernberg, “The Right of the People”: Reconciling Collective and Individual Interests
under the Fourth Amendment, 58 N.Y.U. L. Rev. 259, 270 (1983) (“These cases clearly contemplate
that the rights secured by the fourth amendment are individual rather than a ‘right of the people’
collectively held.”); Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.
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assimilate into the “spared” interpretation.178 One wonders when “the
people” are no longer “spared” unreasonable searches and seizures. If
the government’s first illegal search or seizure constitutes a violation of
the collective right to be spared, then the Amendment is irrational: one
search or seizure does not cause the people as a whole to be searched or
seized. If, on the other hand, a critical mass of the population must be
illegally searched or seized to trigger protection, then the Amendment
serves no real purpose, for it would not be violated under any plausible
scenario.179 One avoids such interpretive challenges, however, if “secure”
is understood to mean “protected” or “free from fear.” It is easy to
conceive of government activity leaving “the people” “unprotected”
against (or “fearful” of) unreasonable searches and seizures. As a result,
the framers’ decision to employ collective language seems to substantiate
the broader interpretations of “to be secure.”180
The rest of the Reasonableness Clause also favors the broad readings
of “to be secure.” The Amendment provides for “the right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”181 In the decades leading up to
ratification, it was common to find written accounts of societies “protected
in” certain, enumerated objects (such as persons or property) or ideas
(such as freedom or liberty). For example, Roger Coke referenced a
society “where Men are protected in their Lives and Fortunes.”182 Joseph
Townsend wrote of a people “equally protected in their property, their
Rev. 349, 367 (1974) (“Plainly, the Supreme Court is operating on the atomistic view.”). But see
Johnson v. United States, 333 U.S. 10, 14 (1948) (“The right of officers to thrust themselves into a
home is also a grave concern, not only to the individual but to a society which chooses to dwell in
reasonable security and freedom from surveillance.”).
178. This Article does not argue that the Amendment should be interpreted as a collective right.
Rather, it argues that the framers’ decision to draft the Fourth Amendment as a collective right
suggests that the term “secure” was intended to mean either “protected” or “free from fear.”
179. Due to natural limits on government resources, it is difficult to imagine the situation where a
substantial percentage of the population would be subjected to actual unreasonable searches and
seizures.
180. The verb “to be” does not materially change the meaning of “secure.” Depending on the
meaning of “secure,” one can simply translate “to be secure” to “to be spared,” “to be protected,” or
“to be free from fear.” Moreover, the framers’ decision to replace “secured” from Madison’s draft
with “secure” seems to be of no importance to the analysis of the meaning of “to be secure.” See
Clancy, John Adams, supra note 151, at 1048 (explaining that the record is silent as to why “secured”
was inserted into and then later removed from the working draft); see Heller, 554 U.S. at 590 (2008)
(“It is always perilous to derive the meaning of an adopted provision from another provision deleted
in the drafting process.”).
181. U.S. Const. amend. IV (emphasis added).
182. Roger Coke, A Detection Of The Court and State Of England During The Reign of K.
James the I. Charles the I. Charles the II. and James the II. as Alfo the Inter-Regnum 6–7 (1719)
(“So all Christian Countries and Kingdoms are as well obliged to join together in honouring and
praising God for the publick [sic] Benefits they receive, in being protected in every Government in
their Lives and Fortunes in this world.”).
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lives, their liberty, and their possessions.”183 To the contrary, it would have
been highly irregular to link the concept of “spared” (or, for that matter,
“free from fear”) to a list of enumerated objects or ideas.184 Further
support for the broad reading lies in the framers’ use of the preposition
“against” to modify “secure.”185 Writers of the founding era regularly
employed the phrase “protected against,”186 and occasionally used “fear
183. Joseph Townsend, Free Thoughts on Despotic and Free Governments; as Connected
with the Happiness of the Governor and the Governed 25 (1781). Further examples are numerous.
See, e.g., John Peter Zenger, The Trial of John Peter Zenger, of New York Printer: who was
Charged with Having Printed and Published a Libel Against the Government and Acquitted
with a Narrative of His Case 15 (1765) (“[W]e were protected in our lives, religion, and
properties.”); Josiah Wedgwood, An Address to the Young Inhabitants of the Pottery 7 (1783)
(“[A]nd being protected in his property.”); John Hamilton Belhaven, The Lord Beilhaven’s Speech
in the Scotch Parliament, Saturday the Second of November on the Subject-Matter of an Union
Betwixt the Two Kingdoms of Scotland and England 4 (1706) (“[P]rotected in his benefices,
Titles, and Dignities.”); Charles Sturges, Religion and Loyalty: a Sermon 6 (1793) (“[Y]e are
happily protected in your properties, in your liberties, and in your lives.”); T. Becket, Authentic
Papers from America: Submitted to the Dispassionate Consdieration of the Public 4 (1775)
(“Protected in these liberties, the emoluments.”); Alexander Cruden, The History of Richard
Potter, a Sailor, and Prisoner in Newgate, who was Tried at the Old-Bailey in July 1763, and
Received Sentence of Death for Attempting, at the Instigation of Another Sailor, to Receive
Thirty-Five Shillings of Prize-Money Due to Third Sailor 10 (1763) (“[F]or the agent only is
protected in his property.”); Edward Farley, Imprisonment for Debt, Unconstitutional 16 (2d ed.
1795) (“. . . is protected in his liberty, and property, unless he has committed a felony.”); Lewis
Atterbury, An Answer [by L. Atterbury] to a Popish Book; Entitled a True and Modest
Account of the Chief Points in Controversie, Between the Roman Catholicks and the
Protestants 8 (1706) (discussing persons “who live securely and peaceably, and are protected in their
Persons and Liberties”); Martin Madan, Thoughts on Executive Justice, with Respect to our
Criminal Laws, Particularly on the Circuits 8 (1785) (advocating for the right “to be protected in
their persons and properties”).
184. A search of Google Scholar for pre-19th Century publications linking “spared” (and related
terms such as “unharmed” and “unaffected”) to objects or ideas identified zero publications. A similar
search for publications linking “free from fear” (and similar terms such as “confident” and its
derivatives) to objects or ideas identified zero publications.
185. One might argue that “against” does not modify “secure” but rather “right” or “right of the
people.” Such an interpretation seems unreasonable. Take, for example, the hypothetical “right of the
people to be secure in their houses against crime.” This articulation could not be fairly interpreted to
provide the people with a “right against crime.” Similarly, a right “to be secure in your person, houses,
papers, and effects against unreasonable searches and seizures” should not be read to create a “right
against unreasonable searches and seizures.” See Weeks v. United States, 232 U.S. 383, 393 (1914)
(referencing the “right to be secure against such searches and seizures” (emphasis added)); Brinegar v.
United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting) (“But the right to be secure against
searches and seizures is one of the most difficult to protect.” (emphasis added)).
186. See Oxford English Dictionary, supra note 24, at 852 (stating that “against” is one of the
prepositions used with the “protected” usage of “secure”). A Google Scholar search of pre-19th
Century publications identified 293 publications using “protection against” and ninety publications
using “protected against.” Moreover, at the time of the founding it was not unusual to pair “secure”
(and its derivatives) with “against.” A Google Scholar search of pre-19th Century publications
identified 238 publications with “secure against” and 250 publications with “secured against.”
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against.”187 The preposition “against,” however, almost never modified
“spared” or similar terms such as “unaffected” or “unharmed.”188
The second part of the Fourth Amendment—the Warrant Clause—
similarly favors the “protected” and “free from fear” interpretations.189
The text and drafting history of the Fourth Amendment suggest that the
framers understood the issuance of a general warrant to constitute a
violation of the “right to be secure.”190 Yet the mere issuance of a
general warrant does not always result in an actual search or seizure.191
Because the issuance of a general warrant necessarily violates the right to
be secure, and because such warrants do not always subject persons to
unreasonable searches or seizures, logic demands that the right to be
secure was meant to safeguard something beyond the mere right to be
“spared” an unreasonable search or seizure.192 It is far more logical to
read “secure” to mean “protected” or “free from fear.” The very issuance
of a general warrant, after all, can be understood to necessarily make
persons less “protected” against, and more “fearful” of, unreasonable
searches and seizures.
Interpreting “secure” to mean “spared” raises a final structural issue:
it seems to render the “to be secure” text a linguistic excess. Had the
framers sought only to safeguard a right to be “spared,” they could have
omitted the phrase “to be secure” and drafted the Amendment to provide
187. A Google Scholar search of pre-19th Century publications identified eleven publications with
“fear against,” and 9060 publications with “fear of.” One could alternatively reframe the “right to be
free from fear” as a “right to confidence.” As it turns out, the language “confidence against” is far less
orthodox than, say, “confidence in.” A Google Scholar search of pre-19th Century publications
identified 3770 publications with “confidence in” and seven with “confidence against.”
188. A Google Scholar search of pre-19th Century publications identified 3920 publications using
the term “spared.” Of these, only one publication used the language “spared against.” Similarly, a
search for “unaffected” identified 1610 publications but zero publications for “unaffected against”; a
search for “unharmed” identified thirteen publications but zero for “unharmed against.”
189. There is a robust debate in the literature about how to read the Reasonableness Clause in
light of the Warrant Clause. Compare Lasson, supra note 145, at 103 (1937) (concluding that the
Fourth Amendment was meant to prohibit warrantless searches), with Davies, supra note 133, at 724
(finding that the Fourth Amendment did not seek to prohibit warrantless searches).
190. U.S. Const. amend. IV (stating that “no Warrants shall issue, but upon probable cause”)
(emphasis added); Lasson, supra note 145, at 103 (“The general principle of freedom from unreasonable
search and seizure seems to have been stated only by way of premise, and the positive inhibition upon
action by the Federal Government limited consequently to issuance of warrants without probable
cause.”). For a history of the writs of assistance, see Clancy, James Otis, supra note 22, at 492–93.
191. A general warrant could, of course, issue but not be exercised.
192. See Lasson, supra note 145, at 103 (“The general right of security from unreasonable search
and seizure was given a sanction of its own and the amendment thus intentionally given a broader
scope.”); Davies, supra note 133, at 590 (stating that the framers ensured “the protection of the person
and house by prohibiting legislative approval of general warrants” (emphasis added)); Rubenfeld,
supra note 22, at 126 (stating that a right to not be subjected to unreasonable searches and seizures
“doesn’t grasp the harm that general warrants actually inflict”).
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for a “right against unreasonable searches and seizures.”193 If, on the other
hand, “secure” meant “protected” or “free from fear,” then the inclusion
of “to be secure” would have been necessary to give the Amendment its
intended meaning. Customary rules of interpretation thereby suggest
that “secure” be read to mean “protected” or “free from fear.”194
3. Discourse on Harms of Potentiality
The structure of the Fourth Amendment, and the meaning of
“secure” at the time of the founding, strongly indicate that the “to be
secure” text conferred a right to be “protected” from unreasonable
searches and seizures—and possibly a right to be “free from fear” from
such government actions. This conclusion is further substantiated by a
review of founding-era discourse concerning the harms caused by the
potentiality of unreasonable searches and seizures.195
Preratification arguments regarding “potentiality” focused on “risks
of exposure,” and in turn, criticized the “power,” “existence,” and
“issuance” (rather than “execution”) of general warrants. In 1582, for
example, an anonymous Catholic wrote of the anxiety that comes with
arbitrary searches: “[F]ellow believers could not enjoy so much as an
hour’s assurance against sudden, forcible invasion, even in their own
dwellings.”196 William Cuddihy found that after the 1640s, general
warrants began to attract criticism because “they furnished an infinite
power of surveillance” that “exposed every Englishman’s dwelling to
perpetual, capricious intrusion.”197 Examples are numerous. In 1688,
Parliament criticized an act that taxed stone fireplaces as “a badge of
slavery upon the whole people” for it “expos[ed] every man’s house” to
search.198 In the 1763 decision, Huckle v. Money, Judge Pratt concluded
193. If the framers were seeking to safeguard a right to be “spared,” they could have drafted the
amendment to provide that the “the right of the people against unreasonable searches and seizures of
their persons, houses, papers, and effects, shall not be violated.” See Rosenthal, supra note 22, at 538
(“If the word ‘secure’ were simply understood as a synonym for a ‘right’ to be free from unreasonable
search and seizure, it would be redundant of the ‘right’ found earlier in the same clause.”).
194. See Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in
the constitution is intended to be without effect.”).
195. Justice Jackson summarized the costs of the potential of unreasonable searches and seizures
in Brinegar v. United States, 338 U.S. 160, 180–81 (1949) (Jackson, J., dissenting) (“Among
deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual
and putting terror in every heart. . . . And one need only briefly to have dwelt and worked among a
people possessed of many admirable qualities but deprived of these rights to know that the human
personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions
are subject at any hour to unheralded search and seizure by the police.” (emphasis added)); see
Camara v. Mun. Court, 387 U.S. 523, 531 (1967) (stating that “possibility of criminal entry under the
guise of official sanction is a serious threat to personal and family security” (emphasis added)).
196. Cuddihy, supra note 31, at 7.
197. Id. at 122 (emphases added).
198. Id. (emphasis added).
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that general warrants reflect a “law under which no Englishman would
wish to live an hour.”199 The “Inhabitants of Boston” issued a report
condemning general warrants in part because “our Houses, even our
Bed-Chambers, are exposed to be ransacked.”200 James Otis argued that
the writs placed the “liberty of every man in the hands of every petty
officer.”201 And John Wilkes claimed to assert “the security” of his own
house “for the sake of every one of my English fellow subjects.”202
Because neither Wilkes nor Otis believed that every individual would
actually be subjected to more searches pursuant to general warrants, it
seems reasonable to infer that both were highlighting the harms incurred
by every individual due to the potential for unreasonable searches and
seizures.
Of course references to potentiality do not always reflect a genuine
concern for the harms of potentiality.203 Appeals to potentiality are
sometimes a rhetorical means to mitigate the harms of actuality.204 But
such appeals, when situated in the larger context of the era’s discourse on
search-and-seizure jurisprudence, strongly indicate an acute sensitivity to
the harms of potentiality. The following paragraphs discuss two relevant
features of preratification discourse: the castle metaphor and allied First
Amendment rights.
Founding-era discourse regarding general warrants centered on a
preferred metaphor: the inhabitant of his home is the king of his castle.205
“The house of every one is his castle,” wrote Chief Justice Coke in the
landmark Semayne’s Case.206 Coke continued:
[T]he house of every one is to him as his . . . castle and fortress, as well
for his defence against injury and violence, as for his repose; and
although the life of man is a thing precious and favoured in law . . . if
thieves come to a man’s . . . house to rob him, or murder, and the
owner [or] his servants kill any of the thieves in defence of himself and
his house, it is not a felony, and he shall lose nothing . . . . [E]very one
may assemble his friends and neighbours . . . to defend his house
against violence.207
The castle metaphor was also central to William Pitt’s famous address to
Parliament:
199. See id. at 445; see also Huckle v. Money, (1763) 95 Eng. Rep. 768 (C.P.).
200. Id. (emphasis added). The “Inhabitants of Boston” was a committee appointed in 1772 to
“state the Rights of the Colonists.” Id. It counted James Otis as a member. Id.
201. See supra note 164 (emphasis added).
202. Peter D.G. Thomas, John Wilkes: A Friend to Liberty 32 (1996) (emphasis added).
203. For a discussion of how the rule against unreasonable searches and seizures can but need not
adequately protect persons from the harms of potentiality, see infra discussion notes 251–253.
204. This rhetorical device is used regularly to get an audience “to relate.”
205. See Clancy, John Adams, supra note 151, at 1021; Clancy, James Otis, supra note 22, at 497 n.51.
206. Semayne’s Case, (1604) 77 Eng. Rep. 194, 194 (K.B.); 5 Coke’s Rep. 91 a.
207. Id. at 195.
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The poorest man may in his cottage bid defiance to all the forces of the
crown. It may be frail—its roof may shake—the wind may blow
through it—the storm may enter—the rain may enter—but the King of
England cannot enter!—all his force dares not cross the threshold of
the ruined tenement!208
Moreover, James Otis profiled the metaphor in his 1761 critique of the
writs of assistance: “A man’s house is his castle; and whilst he is quiet, he
is as well guarded as a prince in his castle.”209
The prevalence of the castle metaphor in preratification discourse
offers us some insights into the meaning of “to be secure.”210 For Clancy,
the comparison between the home and the castle suggests that the Fourth
Amendment was meant to prohibit only actual intrusions.211 Yet
preratification allusions to “castles” almost certainly evoked images
grander than dwellings that just happen, as a matter of fact, to not suffer
actual intrusions. Rather, a “castle” was understood to be a place where
inhabitants enjoyed a degree of protection, and perhaps, as a result, a
degree of freedom from fear. “Castle” is defined as a building “fortified
for defense against an enemy.”212 John Adams understood the importance
of “fortification” to the castle metaphor when he wrote that the home
provides “as compleat a security, safety and Peace and Tranquility as if it
was surrounded with Walls of Brass, with Ramparts and Palisadoes and
defended with a Garrison and Artillery.”213 It should also be noted that the
208. 1 Henry Peter Brougham, Historical Sketches of Statesmen Who Flourished in the Time
of George III 52 (1839).
209. Clancy, Collective Right, supra note 22, at 258. Otis went on to explain: “[o]ne of the most
essential branches of English liberty is the freedom of one’s house.” Cuddihy, supra note 31, at lxiii.
210. See generally Harold J. Berman, Law & Revolution, The Formation of the Western
Legal Tradition 165–74 (1983) (discussing the power of metaphors to Christian precepts on the
development of Western law).
211. See Clancy, Property, Privacy, or Security, supra note 22, at 353–54. The “spared”
interpretation of “to be secure” finds support in some of the earlier postratification treatises. See, e.g.,
Thomas M. Cooley, A Treatise on Constitutional Limitations 425–26 (1896) (“The maxim that
‘every man’s house is his castle’ is made a part of our constitutional law in the clauses prohibiting
unreasonable searches and seizures, and has always been looked upon as of high value to the citizen.”
(emphasis added)); Francis Lieber, Civil Liberty and Self-Government 62 (1859) (“[N]o man’s
house can be forcibly opened, or he or his goods be carried away after it has thus been forced, except
in cases of felony, and then the sheriff must be furnished with a warrant, and take great care lest he
commit a trespass. This principle is jealously insisted upon.”).
212. Oxford English Dictionary 956 (1970).
213. 1 Legal Papers of John Adams, supra note 168, at 137; see 1 John Dickinson, The Political
Writings of John Dickinson 230 (Bonsai & Niles, 1801) (describing the castle as “a place of perfect
security”); Weeks v. United States, 232 U.S. 383, 390 (1914) (“Resistance to these practices had
established the principle which was enacted into the fundamental law in the Fourth Amendment, that
a man’s house was his castle and not to be invaded by any general authority to search and seize his
goods and papers.”).
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castle’s archetypical inhabitant (the monarch) enjoyed unique protections
from potential harms under the common law.214
Sensitivity to the harms attributable to the mere potential for
unreasonable searches and seizures is moreover reflected in preratification
discourse emphasizing the connection between general warrants and the
exercise of speech and religious rights. General warrants had been used to
stifle religious and political dissent in England dating back to at least the
Seventeenth Century.215 For example, the papers of Sir Edward Coke
were seized during his 1621 imprisonment.216 Entick v. Carrington,
central to the colonial narrative of search and seizure,217 involved a
warrant ordering the King’s messengers “to make strict and diligent
search for . . . the author, or one concerned in the writing of several
weekly very seditious papers.”218 James Otis’s criticism of the writs of
assistance explicitly referenced searches relating to “breach of the
Sabbath-day acts.”219 This historical connection between search
regulations and First Amendment rights has not been lost on the
Supreme Court. In Marcus v. Search Warrant, the Court observed that
“[t]he Bill of Rights was fashioned against the background of knowledge
that unrestricted power of search and seizure could also be an instrument
for stifling liberty of expression.”220
Individual decisions to speak or exercise religious rights are based
on some assessment of the expected costs and benefits of such actions.
Here is the critical point: it is the potential for an unreasonable search or
214. For a discussion of the protections of the Crown and the development of attempt law, see
Jerome Hall, Criminal Attempt—A Study of Foundations of Criminal Liability, 49 Yale L.J. 789
(1940). Since the 14th century, “compassing” the death of the Crown constituted treason even without
an overt act. Id. at 795 (stating that treason required “[f]ailure to reveal knowledge about a plot
against the king”) (citing 21 Richard 2 (1397)). This is not to say that the Crown was afforded extra
protection for the purpose of making him less anxious; but it is to say that “freedom from fear” was a
common byproduct of heightened protection and that “freedom from fear” would have been attractive
to anyone seeking a similar degree of protection.
215. Cuddihy, supra note 31, at 8. Numerous examples exist. William Prynne recounted the
plunder of an entire cartload of his library’s contents in 1634 after a search. Id. at 9. Burton and
Bastwick were subject to searches for critical sermons. Id. “Marprelate” denounced the bishops for
terrorizing his printer. Id. at 8.
216. Id. at 140–42.
217. See Boyd v. United States, 116 U.S. 616, 626–27 (1886) (“[E]very American statesman, during
our revolutionary and formative period as a nation, was undoubtedly familiar with this monument of
English freedom . . . [I]t may be confidently asserted that its propositions were in the minds of those
who framed the Fourth Amendment to the Constitution.”).
218. See Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.); see also Wilkes v. Wood, (1763) 19
Howell St. Trials 1153 (K.B.).
219. See Clancy, James Otis, supra note 22, at 511.
220. 367 U.S. 717, 729 (1961); see Frank v. Maryland, 359 U.S. 360, 376 (1959) (Douglas, J.,
dissenting) (“The commands of our First Amendment (as well as the prohibitions of the Fourth and
the Fifth) reflect the teachings of Entick v. Carrington. These three amendments are indeed closely
related, safeguarding not only privacy and protection against self-incrimination but ‘conscience and
human dignity and freedom of expression as well.’” (citation omitted)).
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seizure—not simply its actuality—that impacts deliberations regarding
the exercise of speech or religious rights. As such, the founding-era
discourse on the potentiality of unreasonable searches and seizures was
not simply a rhetorical device to generate support for policies to mitigate
the harms of actual unreasonable searches and seizures. Rather, it
reflected an awareness of the harms attributable to the potential for
unreasonable searches and seizures.221 In other words, founding-era
discourse strongly suggests that, in the context of unreasonable searches
and seizures, the framers realized the value of “protection” and “freedom
from fear.”
III. Implications
On the basis of both text and history, the Fourth Amendment right
“to be secure” can be fairly read to encompass the right to be
“protected” from unreasonable searches and seizures, and quite possibly
the right to be “free from fear” of such government actions. This broader
interpretation of “to be secure” has important implications for prevailing
Fourth Amendment rules and procedure.
A. Expedited Regulation
Judicial recognition of rights to be “protected” and “free from fear”
will almost certainly facilitate earlier judicial review of new investigative
techniques, which will serve to curb the rising costs of regulatory delay.
Consider the example of drone surveillance by law enforcement.222
Under current Fourth Amendment law—limited to the right to be
“spared” an unreasonable search or seizure—plaintiffs lack standing to
challenge drone surveillance unless they can plead facts to demonstrate
that they have actually been surveilled by a drone, or that such
surveillance is “certainly impending.”223 Because the government
221. By the time of ratification the law had been used in various contexts to mitigate “harms of
potentiality.” Individuals who feared attack by another could seek protection by presenting an
“Article of the Peace” to the King’s Bench. Articles of the Peace, Entercourse, and Commerce
(1605). The tort of assault, from at least the 17th Century, was based on an imminent threat of harm.
See Tuberville v. Savage, (1669) 86 Eng. Rep. 684 (K.B.). The crime of robbery, beginning in 1735,
included the element of “putting another in fear.” Rex v. Francis, 8 Geo. 2 B.R. (1735) (“To make a
complete robbery there must be a taking from the person, and putting in fear; but it is not necessary
that the fear should be previous to the taking; for if it accompanies it, it is sufficient.”). The recognition
of attempt crimes—though not requiring the victim be fearful—nonetheless punished individuals who
had not completed offenses but simply made people fearful. See Rex v. Scofield, Caldecott 397 (1784).
The absence of the tort of intentional infliction of emotional distress does not suggest that the legal
system of the founding era did not understand the need to deter such inflictions. More likely, the
common law judges simply realized that the benefits of such causes of action were outweighed by their
costs (such as error rates).
222. See supra discussion Part I.B.
223. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013).
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regularly conceals information about the objects of drone surveillance,224
individuals will find it difficult to initiate judicial review (and thus judicial
regulation) of drone programs. But an individual who is “spared” drone
surveillance can nonetheless experience a violation of his right to be
“protected” or “free from fear.” This means that Fourth Amendment
claimants can establish standing to challenge the constitutionality of
drone surveillance even if law enforcement has successfully concealed
information about the objects of such surveillance.225 As a result, the
“protected” and “free from fear” interpretations would, in most cases
involving concealed investigative techniques, expedite standing—and
hence judicial regulation—without upsetting the prevailing Article III
rules regarding “injury-in-fact.”226
B. Rule Against Adoption
Rules giving effect to Fourth Amendment rights to be “protected”
and “free from fear” must be drawn carefully.227 Otherwise they will invite
burdensome litigation, disruptions to ongoing lawful investigations, and
discontinuity of precedent. Thankfully the rights to be “protected” and
“free from fear” can be adequately guarded by a simple rule against
government adoption of unregulated investigative techniques:
The Fourth Amendment prohibits government adoption of a method
that constitutes an unregulated and unreasonable search or seizure. 228
224. See supra discussion Part I.B; Brian Bennett, Police Employ Predator Drone Spy Planes on
Home Front, L.A. Times (Dec. 10, 2011), http://articles.latimes.com/2011/dec/10/nation/la-na-dronearrest-20111211/2; Stephen Dean, Police Line Up to Use Drones on Patrol after Houston Secret Test,
Houston Examiner, Jan. 11, 2010, at 1.
225. Moreover, the pleading requirements enunciated in Iqbal will not present added difficulties.
Plaintiffs must merely plead plausible factual allegations that their rights to be “protected” or “free
from fear” were violated. Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009).
226. See Clapper, 133 S. Ct. at 1140–41. This is perfectly consistent with Laird v. Tatum, where the
Court held that respondents lacked standing to pursue a First Amendment claim based on the mere
adoption of a government surveillance program. 408 U.S. 1, 10 (1972). In that case the Court found it
unclear whether respondents experienced an actual violation of their First Amendment rights. Id. at
15. But if the Fourth Amendment were read broadly to encompass a right to be “protected” or “free
from fear,” then a surveillance program (similar to that at issue in Laird) could very well violate the
Fourth Amendment rights of individuals (similar to the respondents in Laird) so long as the
individuals were left not “protected” or “free from fear.”
227. Soldal v. Cook County, 506 U.S. 56, 71 (1992) (referencing concern over Fourth Amendment
interpretations “carry[ing] it into territory unknown and unforeseen”).
228. For the sake of simplicity, the rule is based on three broad assumptions: (1) protection exists,
and fear is not objective, before a method has been adopted by the jurisdiction; (2) protection exists,
and fear is not objective, once a method has been regulated; and (3) protection exists, and fear is not
objective, once a method has been found to not be an unreasonable search or seizure. See Christopher
Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss.
L.J. 213, 312 (2002) (“Knowledge that government has enacted rules limiting its surveillance powers
. . . is the surest way to enhance a sense of security in an age when technology threatens our
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The violation of this rule against “adoption”—one of several viable
alternatives to guard the rights to be “protected” and “free from fear”—
could serve as the basis for a declaratory judgment or civil action.229 It
would serve to supplement, rather than replace, the right to be “spared.”230
C. Curbing New Litigation
The rule against “adoption” will not invite burdensome litigation.
This is attributable, in large part, to the limiting nature of its elements.
The “adoption” element, for example, discourages litigation concerning
fanciful or incredible surveillance.231 It also helps to confine litigation to
circumstances in which law enforcement can be thought to have assumed
litigation risks. The rule’s “unregulated” and “unreasonable” elements
are likely to further restrict litigation to new investigative methods.232
anonymity.”); Rosenthal, supra note 22, at 538 (“Security may not require perfect deterrence, but
surely demands at least reasonable deterrent efficacy.”).
229. Declaratory judgments are likely the preferred form of action. Qualified immunity doctrine
makes it unlikely that government violations of the rule against “adoption” will result in civil liability.
In those cases where the adopted method is clearly unregulated and unreasonable, but where the
government did not willfully conceal its adoption, courts should be careful to only impose nominal
damages—otherwise the rule against “adoption” would unduly punish law enforcement for the ex post
nature of judicial regulation. Moreover, mere violations of the rule against “adoption” should not
result in the suppression of evidence. Because there is no requirement under the rule against
“adoption” to show that the claimant was actually subjected to the technique, there are no fruits of the
technique to suppress. (Of course, violations of the rule to be “spared” can still trigger an exclusionary
sanction.) Lastly, injunctions are not practically available under this proposed rule. Once the Court
sets the constitutional standards for the use of the method, the rule against “adoption” can no longer
be violated (as any future government uses of that method will not constitute use of an “unregulated”
method). As a result, there is no risk of a future violation of the rule against “adoption” (in regard to
the challenged technique) to justify an injunction.
230. In other words, the right to be “spared” is subsumed by the right to be “protected.” This is
based on the reasonable view that a person is not protected against unreasonable searches and
seizures when they are being subjected to unreasonable searches and seizures. Dist. of Columbia v.
Heller, 554 U.S. 570, 591 (2008) (“State constitutions of the founding period routinely grouped
multiple (related) guarantees under a singular ‘right.’”).
231. Whether a method has been “adopted” is a question of fact. The element of “adoption” might
rest, for example, on a news report, FOIA production, government leak, citizen observation, or
legislative finding regarding the secret program’s existence. Randy E. Barnett, Opinion, The NSA’s
Surveillance is Unconstitutional, Wall St. J. (July 11, 2013, 6:44 PM), http://online.wsj.com/news/
articles/SB10001424127887323823004578593591276402574 (“Due largely to unauthorized leaks, we
now know that the National Security Agency has seized from private companies voluminous data on
the phone and Internet usage of all U.S. citizens.”). That said, it also seems reasonable to find
“adoption” based on legislation empowering law enforcement to act. See Berger v. New York, 388
U.S. 41, 90 (1967) (reviewing N.Y. Code Crim. Proc. § 813-a (1967)); FISA Amendments Act, Pub. L.
No. 110-261, 122 Stat. 2435 (2008) (codified at 50 U.S.C. §§ 1801–12).
232. To avoid difficult questions of what constitutes “legislative regulation,” I suggest that
“regulation,” pursuant to the rule against “adoption,” be limited to “judicial regulation.” Moreover, I
suggest that “judicial regulation” exists once an appeals court of the relevant jurisdiction has
established rules for the method’s “reasonable” use. Trial court rulings would not likely trigger the
deterrents of exclusion and civil sanctions necessary for a judicial ruling to constitute “regulation.” See
discussion supra Part I.A. Limiting “regulation” to appeals court rulings raises the possibility of
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The limiting nature of “unregulated” and “unreasonable” can be
illustrated by a series of hypotheticals. Imagine the announcement of a
new departmental policy to stop and search vehicles without
particularized suspicion. Because the adopted government method (the
suspicionless stop and search of a vehicle) has been “regulated” with
constitutional standards (maintained, to some degree, by the threat of
exclusion and civil sanctions), the department’s policy does not implicate
the rule against “adoption.”233 Next assume that an officer following the
new policy actually stops and searches a vehicle without cause. At this
point, the officer has violated the rule to be “spared,” but because the
challenged method has been “regulated,” the officer’s use of the method
does not violate the rule against “adoption.”234 Finally, imagine an officer
following a vehicle for an entire shift. Because the challenged government
method—following a vehicle without suspicion—does not constitute an
“unreasonable search or seizure,” the rule against “adoption” is, once
again, not implicated.235
Baseless claims concerning the rule against “adoption” can be
exposed through de minimus allocations of government resources.
Plaintiffs will be required to allege facts to establish it plausible that
(1) the jurisdiction has “adopted” the method (or that such adoption is
“certainly impending”);236 (2) the method is “unregulated”; and (3) the
parallel litigation within a given jurisdiction. Yet much of Fourth Amendment litigation regarding new
technologies is coordinated by a select number of public interest groups. As a result, the risk of
burdensome parallel litigation is small. Another potential concern is defining the relevant appellate
jurisdiction. This can be based, easily enough, on the appeals courts relevant to the “clearly established
law” requirement for qualified immunity. So in the context of uses of a new method by federal agents,
the method is not “regulated” until a panel of the governing circuit court of appeals has established
standards for its “reasonable” use. When it comes to uses by state agents, the method is not
“regulated” until a panel of the governing federal circuit court or state court of appeals has set
standards for its reasonable use.
233. It would make no difference if the officer actually threatened the unreasonable search: the
threatened action—stop and search of a vehicle—has been regulated and the passenger therefore
remains, as a matter of law, “protected” and “free from fear.”
234. When I write that the right to be “protected” is not violated, I mean that the part of the right
to be “protected” that goes beyond the right to be “spared” has not been violated. One might ask
whether section 1881a of the FISA Amendments of 2008 could be challenged by this rule. This section
is a “new and independent source of intelligence collection authority, beyond that granted in
traditional FISA.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1144 (2013) (internal citations and
quotations omitted). It does not require the Government to demonstrate probable cause that the
target of electronic surveillance is a foreign power or agent of a foreign power. Because this method
has been neither “regulated” nor found “reasonable” by the judiciary, its adoption could likely be
challenged pursuant to the rule.
235. A government’s adoption of “sneak and peak” searches of residences would not violate this rule.
Because the feared government technique (search of a dwelling based on a warrant but without notice)
has been regulated (with standards for reasonableness that are maintained by the threat of exclusion and
civil sanctions), the residents remain, as a matter of law, “protected” and “free from fear.”
236. Clapper, 133 S. Ct. at 1147 (defining “injury-in-fact” requirement of Article III standing as
harm that is either “actual” or “certainly impending”).
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method constitutes an “unreasonable search or seizure.”237 The
government can sufficiently rebut a claim of “adoption” with nothing
more than a signed affidavit from the chief law enforcement officer. And
it can support a judicial finding of “regulation” with a mere copy of a
prior judicial order.238 Only when a court finds that the government has
adopted an unregulated method will the government be asked to brief
the issue of whether the challenged method constitutes an “unreasonable
search or seizure.” At this point the government can claim that (1) the
adopted method does not constitute a “search” or “seizure,” or (2) the
adopted method is “reasonable.” When a court holds that the challenged
method does not constitute a “search” or “seizure,” its work is finished
and, if affirmed on appeal, similarly-situated future litigants will not have
an actionable claim pursuant to the rule against “adoption.”239 Only
when a court finds that the method is a “search” or “seizure” will it ever
be expected to go on to describe the requirements for constitutional
“reasonableness.”240
D. Preserving Ongoing Surveillance
A further concern is that the proposed rule against “adoption” will
disrupt ongoing, lawful surveillance programs.241 The Clapper majority, for
237. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give rise
to an entitlement to relief.”).
238. See supra note 232 (discussing jurisdictional questions regarding “judicial regulation”).
239. Judicial elaboration on “reasonableness” should occur only if it is necessary to resolve the
case. Most litigation under this rule will involve warrantless, suspicionless uses of an investigative
technique. In such cases, specification of any standard of reasonableness will be appropriate. But if the
challenged technique was used, say, pursuant to a warrant based on probable cause, then it may
violate the “case and controversy” requirement for the court to elaborate on the specific requirements
of “reasonableness.” Should the judge forego elaboration, then further litigation (based on claims that
the technique is used by the government without a warrant based on probable cause) would be likely.
240. The typical assessment will not present difficult questions about “reasonableness.” In the
atypical assessment, where difficult issues arise, the difficulties are rarely likely to be allayed with time.
And in that narrow category of assessments in which difficult questions are likely to be allayed with
time, the costs associated with expedited decisionmaking are mitigated by the fact that judges and
legislators are able to amend their conclusions at later points. See generally City of Ontario v. Quon,
130 S. Ct. 2619 (2010). In a recent article, Orin Kerr has criticized ex ante review of Fourth
Amendment claims as being error prone. Orin S. Kerr, Ex Ante Regulation of Computer Search and
Seizure, 96 Va. L. Rev. 1241, 1281 (2010) (stating that “[t]he major difficulty with ex ante restrictions
is that the reasonableness of executing a warrant is highly factbound, and judges trying to impose ex
ante restrictions generally will not know the facts needed to make an accurate judgment of
reasonableness”). Unlike the magistrate rules discussed in Kerr’s article, a court’s establishment of
constitutional standards to regulate an investigative technique does not require the court to apply rules
to facts. In this way the litigation surrounding the rule against “adoption” avoids the “factbound
morass of reasonableness” emphasized by Kerr. Id. (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)).
241. A related concern is that the rule will give the judicial branch undue influence over the pace
of investigations. The worst-case scenario for the government, however, is not the termination of the
related investigation but rather compliance with the warrant requirement.
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example, expressed alarm that “a terrorist (or his attorney) [could]
determine whether he is currently under U.S. surveillance simply by filing
a lawsuit challenging the Government’s surveillance program.”242 Such
risks will not arise in litigation pursuant to the rule against “adoption.” The
identity of particular targets (or, for that matter, the existence of any
targets) is not relevant to a claim under the proposed rule.243
Yet one might be alternatively concerned that “a terrorist (or his
attorney)” would exploit litigation under this new rule to learn about the
existence of a type of surveillance program. Any such fear is unfounded.
Plaintiffs must plead facts to show “adoption” has occurred or is
certainly impending. In cases in which a plaintiff fails to plead such facts
(even when the allegation is true) the government need not address the
issue of “adoption.” It can simply move to dismiss for failure to state a
claim. But even in cases in which a plaintiff successfully states a claim,
relatively little information about the existence of a program will be
revealed as a result of litigation. This deserves a brief explanation. First,
successful claims of “adoption” are likely to have drawn from facts
already in the public domain. Second, the government can seek to have a
complaint dismissed on the ground that the challenged technique has
already been “regulated.” Third, the government can mitigate the harms
of disclosure by simply conceding the issue of “adoption” for the
purposes of litigation.244 As a result, litigation over the proposed rule
against “adoption” will never force the disclosure of information about
particular targets of surveillance, and it will only occasionally (and
imperfectly) reveal information about the existence of particular
surveillance methods.245
E. Respecting Precedent
Judicial recognition of the rule against “adoption” will not
contravene principles of stare decisis. The rule leaves undisturbed the
242. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1149 n.4 (2013).
243. Richards, supra note 1, at 1960 (explaining that a “prohibition on secret surveillance systems
does not require the government to notify individual targets of surveillance”) (emphases in original).
244. Admittedly, the government’s decision to not address the “adoption” issue would likely signal
that the program existed. But the costs incurred by the government from such a signal are relatively
low, as the plaintiff has already identified facts about the existence of the program sufficient to meet
the pleading requirement.
245. Moreover, if a terrorist (or his attorney) happens to be the first person to challenge a
technique (and he makes it to the judicial review phase), he will still not be able to discern whether the
government used (or uses) the technique to surveil him. The judge’s consideration of reasonableness,
after all, is purely legal. There is no application of the reasonableness standard to the individual.
Because it does not matter whether the government met the threshold of requisite cause, neither the
litigants (nor the judges themselves) will gain information through this litigation about the particular
targets of investigative techniques.
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Court’s line of standing and pleading cases.246 A plaintiff must still assert
facts showing it plausible that her rights were violated or that a violation
is certainly impending.247 Moreover, the proposed rule does not upset the
prohibition on advisory opinions. Advisory opinions resolve cases and
controversies that are merely hypothetical.248 A court’s establishment of
the constitutional standard for a given investigative technique could be
perceived as “hypothetical” insomuch as the case is disconnected from an
actual search or seizure. Yet establishment of the standard is appropriate
because it is necessary to resolve an actual (rather than hypothetical)
case: whether an individual’s Fourth Amendment rights to be
“protected” and “free from fear” have been violated.249 As a result,
judicial conclusions of law necessary to adjudicate alleged violations of
the rule against “adoption” cannot be fairly characterized as
“advisory.”250
The rule against “adoption” can also be viewed as part of a larger
pattern of Fourth Amendment rulemaking. To make this point, this
Article offers a brief counter-narrative of Fourth Amendment
decisionmaking.251 Early in the Court’s history, a simple rule against
246. See Clapper, 133 S. Ct. 1138; Ashcroft v. Iqbal, 556 U.S. 662 (2009). Again, the “injury-infact” is the violation of the right to be “protected” or “free from fear.”
247. See Clapper, 133 S. Ct. at 1147; Iqbal, 556 U.S. at 678. In Clapper, the harm at issue was
derived from a violation of the rule to be “spared.” Clapper, 133 S. Ct. at 1143 (referencing risk of
“acquired” communications); id. at 1156 (discussing risk of “interception” of communications). Under
the proposed rule, the alleged harm would stem from the “adoption” of an unregulated and
unreasonable method of search or seizure.
248. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 325 (1936) (explaining that “a
controversy of a justiciable nature” excludes “advisory decrees upon hypothetical state of facts”);
Muskrat v. United States, 219 U.S. 346, 361 (1911) (“That judicial power, as we have seen, is the right
to determine actual controversies arising between adverse litigants, duly instituted in courts of proper
jurisdiction. The right to declare a law unconstitutional arises because an act of Congress relied upon
by one or the other of such parties in determining their rights is in conflict with the fundamental
law.”).
249. The consideration of an adopted technique is similar to the consideration of a subpoena at least
insomuch as neither invasion will occur with certainty. See Boyd v. United States, 116 U.S. 616, 631–35
(1886) (holding that scope of subpoenas can be reviewed on Fourth Amendment grounds before
compliance). Cf. Muskrat, 219 U.S. at 361 (“The object is not to assert a property right as against the
Government, or to demand compensation for alleged wrongs because of action upon its part. The
whole purpose of the law is to determine the constitutional validity of this class of legislation.”).
250. Elaboration about the standard for “reasonableness” may, however, be “advisory” if the
technique was used pursuant to a warrant with probable cause. In such a case a court should find the
adopted method to be “reasonable” but not clarify the standard for reasonableness. In most cases,
however, this problem will not arise as the challenged method will involve uses that are warrantless
and without suspicion.
251. The master narrative, endorsed by today’s Supreme Court, is that supplementary Fourth
Amendment rules serve only the constitutional right to not be unreasonably searched or seized (i.e.,
the right to be “spared”). See, e.g., Herring v. United States, 555 U.S. 135, 141 (2009) (“[T]he
exclusionary rule is not an individual right and applies only where it ‘results in appreciable
deterrence.’” (quoting United States v. Leon, 468 U.S. 897, 909 (1984)); Leon, 468 U.S. at 906 (“[T]he
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unreasonable searches and seizures was believed to deter unreasonable
searches and seizures to such a degree that it provided “protection” and
left persons “free from fear.”252 Yet ensuing shifts in law and society
eroded the deterrence generated by the rule against unreasonable searches
and seizures.253 Eventually the deterrence generated by the rule dipped to
the point where individuals were unprotected against (and fearful of)
unreasonable searches and seizures. The Court responded to the
weakened deterrence of the rule by creating supplementary Fourth
Amendment rules. The Boyd Court, for example, supplemented the rule
against unreasonable searches and seizures with a Fourth Amendment
rule prohibiting “allegations . . . taken as confessed” following the refusal
of an unreasonable search or seizure.254 Justice Bradley located this
supplemental rule in the constitutional guarantee of “security.”255
Several decades later, the Court surveyed prevailing doctrine and again
found that insufficient deterrence existed to safeguard the rights to be
“protected” and “free from fear.”256 In United States v. Weeks, the
exclusionary rule is neither intended nor able to ‘cure the invasion of the defendant’s rights which he
has already suffered.’” (quoting Stone v. Powell, 428 U.S. 465, 540 (1976) (White, J., dissenting)).
252. See Soldal v. Cook County, 506 U.S. 56, 72 (1992) (“[W]e doubt that the police will often
choose to further an enterprise knowing that it is contrary to the law.”). At the time of the founding,
prohibitions on actual unreasonable searches and seizures would have likely provided sufficient
deterrence to safeguard the rights to be “protected” and “free from fear.” See, e.g., Entick v.
Carrington, (1765) 95 Eng. Rep. 807 (K.B.) (“By the laws of England, every invasion of private
property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my
license, but he is liable to an action.”); Akhil Reed Amar, The Bill of Rights: Creation and
Reconstruction 69 (1998) (“A warrant issued by a judge or magistrate . . . had the effect of taking a
later trespass action away from a jury of ordinary citizens.”). See Donald A. Dripps, Responding to
the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment ,
81 Miss. L.J. 1085, 1102–1117 (2012) (discussing risks of warrantless searches and seizures for
government agents at time of the founding). Moreover, the rights to be “protected” and “free from
fear” can be understood to be individual rights. Just because the rights to be “protected” and “free
from fear” can be violated by general law enforcement activity (not directed at the individual) does
not necessarily render such rights “collective.” To illustrate: if an individual was assured that he was
not subject to surveillance, then his individual right to be “protected” and “free from fear” would not
be violated even if the rest of the population was unprotected and fearful. To the contrary, he would
likely have a claim if such rights were understood to be “collective.”
253. See People v. Cahan, 282 P.2d. 905, 911 (Cal. 1955) (“We have been compelled to reach th[e]
conclusion [that the exclusionary rule is necessary] because other remedies have completely failed to
secure compliance with the constitutional provisions on the part of police officers.”); see also United
States v. Jones, 132 S. Ct. 945, 963 (2012) (Alito, J., concurring) (“In the pre-computer age, the
greatest protections of privacy were neither constitutional nor statutory, but practical.”).
254. Boyd v. United States, 116 U.S. 616, 620 (1886). In Boyd, the “search and seizure” came in the
form of a subpoena. Id. at 636.
255. Id. at 635 (stating that the “constitutional provisions for the security of person and property
should be liberally construed”).
256. Weeks v. United States, 232 U.S. 383, 392 (1914) (referencing the “tendency” of police to
obtain convictions by means of unlawful seizures). For arguments that the exclusionary rule is
mandated by the Constitution, see Amsterdam, supra note 177, at 367 (stating that the Fourth
Amendment is a “regulatory canon requiring government to order its law enforcement procedures in a
fashion that keeps us collectively secure in our persons, houses, papers and effects”); Doernberg, supra
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Court drew from the “right to be secure” to supplement Fourth
Amendment doctrine with a rule prohibiting the use of ill-gotten
evidence in criminal prosecutions.257 Writing for the majority, Justice
Day explained that if the Fourth Amendment consisted of a mere rule
against unreasonable searches and seizures, then, as a practical matter,
“letters and private documents can thus be seized and held and used in
evidence against a citizen accused of an offense,” and “the protection of
the Fourth Amendment, declaring his right to be secure against such
searches and seizures is of no value, and, so far as those thus placed are
concerned, might as well be stricken from the Constitution.”258 In sum,
the creation of supplemental Fourth Amendment rules in Boyd and
Weeks can be fairly understood as judicial efforts to generate deterrence
sufficient to safeguard individual Fourth Amendment rights to be
“protected” and “free from fear.”259
This counter-narrative of Fourth Amendment rulemaking admits
the proposed new rule against government “adoption” of unregulated
and unreasonable investigative techniques. The forces of law and society
have again shifted such that the current body of Fourth Amendment
note 177, at 294 (concluding that “the Court should explicitly recognize the societal interest
[motivating the exclusionary rule] for what it is—a collective constitutional right”).
257. Weeks, 232 U.S. at 393–94; see Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391
(1920) (recognizing the “fruit of the poisonous tree” rule). For those who view “to be secure” to
safeguard a mere right to be “spared,” the exclusionary rule is difficult to justify as a matter of
constitutional law. Thomas K. Clancy, The Fourth Amendment’s Exclusionary Rule as a
Constitutional Right, 10 Ohio St. J. Crim. L. 357, 389–91 (2013) (explaining that the exclusionary rule
is constitutional because “there can be no right without a remedy” but failing to address why exclusion
is the proper remedy for a violation of the right to be “spared”). Another example is the rule
permitting facial invalidation of legislation endorsing procedures to violate the right to be “spared.”
Berger v. New York, 388 U.S. 41, 90 (1967) (Harlan, J., dissenting) (“The Court declares, without
further explanation, that, since petitioner was ‘affected’ by § 813-a, he may challenge its validity on its
face.”); Warshak v. United States, 490 F.3d 455, 477 (6th Cir. 2007) (“Under Berger, facial invalidation
is justified where the statute, on its face, endorses procedures to authorize a search that clearly do not
comport with the Fourth Amendment.”) But see Sibron v. New York, 392 U.S. 40, 59–62 (1968)
(stating the Court’s preference for as-applied challenges).
258. Weeks, 232 U.S. at 393 (emphasis added); Furthermore, “[t]he effect of the Fourth
Amendment is to put the courts of the United States and Federal officials, in the exercise of their
power and authority, under limitations and restraints as to the exercise of such power and authority,
and to forever secure the people, their persons, houses, papers and effects, against all unreasonable
searches and seizures under the guise of law.” Id. at 391–92.
259. See Rosenthal, supra note 22, at 538 (“Absent a remedial scheme that offers reasonably
effective deterrence, the right to be “secure” against unreasonable search and seizure is breached.”).
Some scholars have pointed out that the atomistic approach to standing is in tension with the collective
remedy of the exclusionary rule. See Doernberg, supra note 177, at 284–85 (observing that by
identifying an “individual right” with respect to questions of standing and a “collective remedy”
designed to protect society by deterring unlawful police conduct, the Court is “using two analytically
distinct approaches to analyze fourth amendment cases” which are “fundamentally at war with each
other”); Amsterdam, supra note 177, at 369 (stating that the deterrence rationale for the exclusionary
rule treats the Fourth Amendment “as a general regulation of police behavior” and that courts are
acting dishonestly by maintaining the view that Fourth Amendment rights are atomistic).
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doctrine no longer generates the deterrence needed to safeguard the
rights to be “protected” and “free from fear.”260 Today’s regulatory
matrix—a combination of pleading rules, standing rules, the rule to be
“spared,” qualified immunity, and the good-faith exception to the
exclusionary rule—is systematically exploited by law enforcement’s
concealment of the existence and objects of new investigative
techniques.261 Such concealment leaves law enforcement undeterred for
long periods of time in their uses of harmful investigative techniques. The
gap in deterrence leaves us, in turn, unprotected against—and, perhaps,
objectively fearful of—unreasonable searches and seizures.262 In a manner
consistent with past judicial efforts to safeguard the rights to be
“protected” and “free from fear,” the courts should strongly consider
supplementing Fourth Amendment doctrine with a rule against
“adoption” of unregulated and unreasonable methods of search or
seizure.263
Conclusion
Delays in the regulation of new investigative techniques impose high
costs on society. These costs are heightened by law enforcement efforts
to conceal the adoption and uses of new techniques. Unfortunately, the
260. Importantly, the rule against actual intrusions can be sufficient to safeguard the rights to be
“protected” and “free from fear.” Whether such rights are protected by a prohibition on intrusions is a
function of the deterrence created by the rule against intrusion. For example, it seems reasonable to
conclude that, at the time of the framing, rules against actual unreasonable searches and seizures
provided sufficient deterrence to safeguard the rights to be “protected” and “free from fear.” See, e.g.,
Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.) (“By the laws of England, every invasion of
private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without
my license, but he is liable to an action.”); Dripps, supra note 252, at 1124–25 (discussing risks to
government agents at time of ratification who searched or seized without a warrant).
261. See supra Part I.B.
262. As Jerome Hall explained, in the context of criminal law, “legal principles arise not from
whim or playful imagination but from need; we may assume at certain crucial points in the
administration of the criminal law, available sanctions were deemed inadequate. Tension sets in, which
makes for legal change.” Hall, supra note 214, at 811; see John Dewey, Logical Method and Law, 10
Cornell L.Q. 17, 25 (1924) (“There is of course every reason why rules of law should be as regular
and as definite as possible. But the amount and kind of antecedent assurance which is actually
attainable is a matter of fact, not of form. It is large whenever social conditions are pretty uniform, and
when industry, commerce, transportation, etc., move in the channels of old customs. It is much less
whenever invention is active and when new devices in business and communication bring about new
forms of human relationship.”); John H. Ely, Democracy and Distrust: A Theory of Judicial
Review 1–2 (1980) (“The Constitution proceeds by briefly indicating certain fundamental principles
whose specific implications for each age must be determined in contemporary context. . . . That the
complete inference will not be found there—because the situation is not likely to have been
foreseen—is generally common ground.”).
263. In this way the constitutional rule against “adoption” can be viewed as similar to the
exclusionary rule. Both are efforts by courts to generate the deterrence necessary to safeguard the
individual rights to be “protected” and “free from fear.” In both situations the deterrence is generated
through judicially-created, bright-line rules that can be efficiently implemented by courts.
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rising costs of regulatory delay cannot be sufficiently checked by
conventional reform proposals. Calls for earlier legislation and broader
rules of Article III standing have proved ineffective. Society must
therefore work to identify and develop alternative methods to expedite
the regulation of new investigative techniques. This Article proposed
that the solution can be found in the text of the Fourth Amendment. The
Fourth Amendment has been interpreted by courts and commentators to
guarantee a mere right to be “spared” unreasonable searches and
seizures. A study of the original meaning of the “to be secure”
phraseology, however, suggests that the Amendment can be read more
broadly: to safeguard a right to be “protected” against unreasonable
searches and seizures, and quite possibly a right to be “free from fear”
against such government action. Fourth Amendment rights to be
“protected” and “free from fear” can be adequately guarded by a simple
rule against government “adoption” of an investigative method that
constitutes an unregulated and unreasonable search or seizure. This rule
against “adoption” will curb the costs of regulatory delay and, at the same
time, keep the promise of those who drafted and ratified the Fourth
Amendment.